American Legislatures And Legislative Methods

AMEKICAN LEG-ISLATUKES

AND

LEGISLATIVE METHODS

TCbe american State Series

Eight volumes desctihing comprehensively
the manner in which the Q-ovemmental agen-
cies of the American State are organized and
administered.

Edited hyW. W. 'WILLOUaHBY,
Associate Professor of Political Science at
the Johns Hopkins University.

Each about 320 pages, $1.25 net.

THE AMEKICAN CONSTITUTIOIirAL SYiSTEM.
An introduction to the series, by the Editor.

CJTr GOVEENMEIfT IN THE UNITED STATES.
By F J. Goodnow, Professor of Administrative Law,
Columbia University.

PARTY ORGANIZATION. By Jessb Macy, Profes-
sor of Political Science at Iowa College,

THE AMERICAN EXECUTIVE AND EXECUTIVE
METHODS. By President J. H. Fini.by, College
of the City of New York.

AMERICAN LEGISLATURES AND LEGISLA-
TIVE methods. By Profesflor Paul S. Sbinsch,
University of Wisconsin.

THE AMERICAN JUDICIARY. By Simeon E.
Baldwin, Associate Justice of the Supreme Court of
Errors of Connecticut, and Professor of Constitutional
Law in Yale University.

TERRITORIES AND COLONIES. By W. P. Wm-
LouoHBT, Treasurer of Porto Rico.

LOCAL GOVERNMENT IN TOWNS, COUNTIES,
AND VILLAGES. By Professor John A. Faiblik,
University of Michigan.

ffbe CentutB Go., Hew ffiorft

Ubc amertcan State Series

AMERICAN LEGISLATURES

AND

LEGISLATIVE METHODS

BY

PAUL S. EEINSCH

PBOPKSSOR OP POLITICAL SCIENCE AT THE UNIVERSITY OP WISCONSIN.
, AUTHOR OP “WORLD POLITICS AT THE END OP THE NINE-
TEENTH CENTURY,” “ COLONIAL GOVERNMENT,”

“COLONIAL ADMINISTRATION”

NEW YORK
THE CENTURY 00.
1920

Copyright, 1907, by
The Centuey Co.

PEEFACE

This volume seeks to furnish a description of the
manner in which law-making bodies— State and Fed-
eral— in the United States are organized and operated.
There is perhaps in this study more that is critical of
the manner in which these legislative organs work, as
compared with the description of their organization,
than, strictly speaking, is warranted by the general
scope of the series in which this volume finds a place.
It is believed, however, that present political con-
ditions justify this shifting of emphasis. In the first
place, in the study of legislative organs, much more
than in the case of judicial and executive bodies, is it
necessary in order to secure an adequate understand-
ing, to pass beyond a mere examination of their mor-
phology, and to consider the exact manner in which
their functional activities are carried on. In the sec-
ond place, the legislative bodies of the American
State, and, indeed, legislative bodies generally, arej
at the present time, being subjected to a special popu-
lar as well as scientific criticism. Parliamentary in-
stitutions everywhere have indeed during the last
quarter of the nineteenth century suffered a notable

PREFACE

decrease of prestige. Even among those who have
given much thought to the matter, there are many
who believe that more than a merely temporary de-
cline of efficiency has befallen the organ which until
quite recently had been regarded as the chief source
of strength of the Western political system. Yet no one
who realizes by what gradual accretions the values of
civilized life are enhanced and in how sure-footed a
manner civilization advances, will be inclined to share
the view of alarmists who predict the utter downfall
of government by discussion.’’ Though we may not
accept the Liberal dogma of government by the best
reason, we must at least admit that parliamentary
institutions have become part and parcel of our poli-
tical life and that they cannot be discarded at will.
High hopes have indeed been disappointed, but may
not these have been given their original pitch by poli-
tical inexperience and by a too facile optimism? Re-
grettable inefficiency has indeed been revealed, but
pei’haps the true function of the parliamentary body
has not yet been determined and worked out in prac-
tice. It would indeed seem that too much has been
expected of this institution. Too many functions have
been conferred upon and claimed by it. The public
has been rudely shaken out of its confidence in the
‘/best possible form of government,” and has learned
by bitter experience that even this form may be put

■vi

PREFACE

to tlie worst of uses, but it will hardly do utterly to
condemn the instrument because mistaken or even
corrupt use of it has been made in the past. A little
more wakefulness, a little more attention to the de-
tailed workings of government, a more careful scru-
tinizing of the personalities to be endowed with pub-
lic power, may yield returns and restore to usefulness
and public confidence the institutions now so gen-
erally decried. In this work of reconstruction, the
present brief study cannot hope to do more than call
attention to the deep significance of the discrepancy
between political ideals and political practice in leg-
islative action.

Throughout the preparation of this work, the author
has received most devoted and valuable aid from Mr.
Horatio B. Hawkins, now of the Chinese Imperial
Customs Service, in the collection of material and the
work of verification. Being called abroad on a pub-
lic mission before the book was completed, the author
has intrusted the preparation of Chapter I, which
deals with the constitutional framework of congres-
sional government, to Professor Bernard C. Steiner
of the Johns Hopkins University.

R S. B.

University of Wisconsin,

Jiily 1, 1906,

vil

CONTENTS

OHAPTBB page

! I The Congress oe the Unitee States 3

The term “Congress” 4 =

Apportionments . 5

Electoral Qualifications and Elections 13

Organization of Congress and Methods of Procedure .... 19

Special Functions of each House 29

11 The House of Representatives • 33

The Functions of Congress / . . . . 33

The Growth of the Speaker’s Power ......... dl

The Committee on Rules . 45

Recent Developments of Congressional Procedure ..... 48

The Basis of the Speaker’s Power 59

Leadership in the House 62

i The Details of Congressional Procedure 71

III The Senate 79

The Development of the Powers of the Senate 82

Appointments to Ofl6.ce 86

I Requests for Information . 90

The Conduct of Foreign Affairs 94

Relations to the House of Representatives 107

The Senate and Party-Machinery 120

IV The State Legislatures 126

Constitutional Limitations 129

General Organization 130

Constitutional Provisions controlling Procedure 134

' The Question of the Finality of the Enrolled Bill 142

Limitations on Special and Local Legislation ...... 147

Constitutional Amendments 156

V Legislative Committees .159

Appointment and Composition of Committees . . . . . . 162

Joint Committees 171

Committee Hearings 174

The Summoning of Witnesses . . . . . . . . • • 176

Conference-Committees 179

ix

CONTENTS

CHAPTER PAGE

Ti Peocedxjre m State Legislatures iss

Steps in Bill Procedure . . • . .

Financial Legislation . . .

vn Legislative Apportionments and Elections. . .

Irregular Apportionments 201

Constitutional Provisions and the Control of Courts . . • . 204

Election Contests • 213

Election or Appointment of State Officers 223

vm The Perversion op Legislative Action 228

The Development of Lobbying Methods ,228

Organization of the Lobby 233

Bipartisan Methods 243

The Bosses 245

Methods of Control and Influence 246

Legislative Blackmail 253

Abuse of the Committee System 257

General Consent * . 259

“Ripper” Legislation 266

IX Public Forces Influencing Legislative Action . 275

Party Organization 275

Public Opinion and Reform Organizations 278

The Governor and the Executive Departments ...... 283

The Legal Profession and Legislation ^,,,287

The Representation of Interests 289

The Regulation of Lobbying ............ 293

Legislative Experts 296

X The Legislative Product .299

Excessive Activity in Legislation . 299

Private and Local Laws . , 300

Defective Form of Legislation 304

Confusion through Amendments 308

Legislative Reform of the Common Law . . . . . . . . 315

Legislative Counsel 327

Index • • ssi

AMEEICAN LEaiSLATUEES AND
LEGISLATIVE METHODS

AMEEICAN LEGISLATURES AND
LEGISLATIVE METHODS

CHAPTEE I

THE CONGRESS OP THE UNITED STATES ^

The framers of the United States Constitution placed
in that document, immediately after the preamble, an
article which provides for the organization and power
of the legislative department of the Federal Govern-
ment. This preeminence was rightly given the Legis-
lature, inasmuch as it is the most important of the
three departments into which the members of the
Constitutional Convention of 1787, following the analy-
sis of Montesquieu, divided the new government.

The United States Constitution is a grant of powers
and not, like the state constitutions, a definition and
limitation of powers previously existing ; so that we
must look for the powers which may be exercised by
the Federal Legislature, either in some express grant
made by the states to the Federal Government in the
Constitution, or in some implied power found by
necessary and proper deduction from such grant. All

^ Prepared by Professor Bernard C. Steiner.

3

AMERICAN LEGISLATURES

these granted legislative powers, express or implied,
are vested by the Constitution in the Congress of the
United States.

Neither the phrase nor the institution was new to
the members of the Philadelphia Convention. The
word '‘congress” had been used since the 17th century
to denote a formal meeting of deputies or plenipo-
tentiaries of several princes to treat about the condi-
tions of peace or to adjust some other important
political interests. The Congress which framed the
Peace of Westphalia in 1648, laid the foundations of
modern diplomacy and was the forerunner of many
important gatherings of ambassadors. ,In colonial
America the word had been used for such conferences
of the colonies for a number of years and, in 1765,
the Massachusetts General Court thought it “highly
expedient that there should be a meeting to consider
of a general Congress.” At first, the word seems to
have been limited in meaning to its original connota-
tion and Samuel Adams in 1773 spoke of a Congress
and then an Assembly of States, as if the latter term
alone should be used of a true law making body ; but
when the Second Continental Congress found it neces-
sary to become an organ of administration and law
making, it continued to use the old name. At the
present day, it is customary to speak of Congress,
without prefixing an article, but the Constitution al-
ways speaks of the Congress. The institution itself
owed its first origin to those conferences which were
early held between the settlers of Plymouth and
Massachusetts Bay, or of Maryland and Virginia.
The “meetings” of the Commissioners of the United

4

THE COFGEESS OF THE UNITED STATES

Colonies of New England, to wMcli gatherings Massa-
chusetts, Plymouth, Connecticut, and New Haven sent
representatives from 1643 to 1685, had given examples
of a federal body; while projects for a Congress, like
William Penn’s plan of union in 1697, and the occa-
sional conferences with the Iroquois at Albany kept
the thought of such institution alive, until it took defi-
nite shape in Franklin’s plan of union presented at
the Albany Congress of 1754, which plan, while re-
jected then, had a potent influence in forming the
Dominion of Canada over a century later.

To protest against the acts of the British government,
a Stamp Act Congress had met at New York in 1765
and a Continental Congress at Philadelphia in 1774.
Its successor in 1775 undertook the conduct of the
war, declared independence and drafted articles of
confederation to form a perpetual union” of the
states. This union w^as to be made /‘more perfect”
by the Constitution of 1787.

The defects of the old Congress, with its one cham-
ber, caused the members of the Convention to make
the new Congress bicameral and to provide that “it
shall consist of a Senate and House of Representa-
tives,” This having been determined, the next ques-
tioh was the basis of representation in the two houses.
After a long struggle, in which the representatives of
the smaller states contended for an equal representa-
tion of each state in either house, as had been the rule
in the one house of the Confederation Congress, and
those of the larger states insisted that representation
should be proportioned to the importance of the
states, the so-called Connecticut compromise was in-

■5

AMERICAN LEGISLATURES

troduced, whereby, in the Senate, each state has two
representatives and, in the House of Representatives,
the number of representatives is based upon popula-
tion. There were some who had wished to base repre-
sentation on property and the question of counting
the slaves was a difficult one, but these matters were
finally settled by deciding that three fifths of the
slaves should be counted in apportioning a state’s
representation in the House of Representatives, and
that the federal census, which is taken decennially
since 1790 to ascertain the population of each state
for the apportionment of representation, should also
be taken as a basis for any direct taxes which might
be levied by the national government. From the rule
in regard to slaves, until the abolition of the institu-
tion of slavery, there was a ^^congressional popula-
tion,” consisting of the freemen and three fifths of
the slaves, in distinction from the actual population.

^ At present there are forty-six states, so that there
^,^ 11 ^ ninety-two senators, when all seats are filled.

first apportionment of members of the House
^ of Representatives was made by the Constitution it-
^ self, in accordance with a rough guess made as to the
relative populations of the states. When the decen-
^ nial enumeration of persons is made. Congress reap-

portions the membership in the House, establishing
whatever ratio it will between the number of persons
and each representative, provided there are not less
than 30,000 inhabitants to each member of the House.
In practice, the number of persons to each member
has been increased at each reapportionment, so that
the increase of membership should not make the House

6

THE COISTGRESS OF THE IHSTITED STATES

too unwieldy, and tlie law now fixes 1 to 212,407
as the ratio. In spite of this increase in the ratio, the
size of the House of Eepresentatives has also in-
creased, until there are now 433 members. New York
State sends thirty-seven of these and Pennsylvania
thirty-two, while Delaware, Idaho, Montana, Nevada,
Utah, and Wyoming have but one member each. The
rule followed ‘Ms to determine the amount of popu-
lation which shall be entitled to one representative in
Congress, and having allowed a representative to
each of these numbers, to allow to every state an addi-
tional member for each fraction of its numbers ex-
ceeding one half of the ratio, rejecting from consid-
eration the smaller fractions.” ,

The task of dividing the states into congressional
districts is left to the state legislatures. This division
by the state legislatures is often made with a view to
promote party advantage and without regard to natu-
ral geographical lines, which practice is known as
gerrymandering.^ If the number of representatives
has been increased by a congressional reapportion-
ment and the state legislature has not redivided the
state before the election, the additional members are
elected on a general ticket, every voter in the state
casting a ballot for them. On a general ticket also
are chosen all the congressmen, as members of the
House of Eepresentatives are commonly styled, when
the state legislature has never divided the state, as is
the case with South Dakota; or when the decennial
apportionment shows a smaller number of eongress-

^By act of Congress it is required, however, that these dis-
tricts shall be composed of contiguous territory.

AMERICAN LEGISLATURES

men from the state than heretofore and the state legis-
lature has not redivided the state before the election.
The representation of fractions was not allowed until
the reapportionment act following the Census of 1840,
and was then introduced so as to “allot to every
state in the Union its proper and just proportion of
representative power.” It is held, in the words of
Webster, “that the representation of fractions less
than a moiety, is unconstitutional; because should a
member be allowed to a state for such a fraction, it
would be certain that her representation would not
be so near her exact right as it was before. But the
allowance of a member for a major fraction is a
direct approximation towards justice and equality.”
Every state, however, has at least one member, so
Nevada is represented though its population in 1910
was less than one half of the number fixed as the basis
of representation.

The House of Representatives is chosen “every
second year by the people of the several states, ” this
limitation in the Constitution preventing any Con-
gress from extending its term as the English Parlia-
ment did in the 17th and in the 18th century. The
term of each congressman begins at noon of the 4th
of March succeeding his election, because the first
Congress was summoned to meet upon that day.
Each new House of Representatives is said to meet
with the Senate as a new Congress. Thus a new Con-
gress assembles every second year, and as the first
one began its session in 1789, the Congress elected in
1914 is the 64th. In the Constitutional Convention
the two-yeafs term was adopted as a compromise be-
■ 8 '

THE CONGRESS OF THE UNITED STATES

tween adherents of annual elections, as was the rule
for most of the state legislatures, and of triennial
elections, as had formerly been the rule in Parlia-
ment; and the Federalist’^ had to combat earnestly
the idea ^^that where annual elections end, tyranny
begins. ” Except in Connecticut and Rhode Island,
members of the old Congress were chosen by legisla-
tures of colonies or states, but the framers of the Con-
stitution determined on an election of representatives
by popular vote, which fact has caused the House of
Representatives to be called the popular branch of
Congress. It is also sometimes called the Lower
House, because of the greater dignity of the Senate
or Upper House, or in analogy to the use of these
terms in England.

The electors of congressmen in each state according
to the Federal Constitution ‘‘shall have the qualifica-
tions requisite for electors of the most numerous
branch of the state legislature.” What these qualifi-
cations now are, we shall consider in another place;
but, for the present, it is sufficient to note that the
electoral franchise for congressmen varies according
to state law. The wording of the clause in the Con-
stitution is to be explained as determined by the law
then prevailing in Maryland, in which state the
Senate, the less numerous house of the legislature,
was selected by a body of electors chosen by popular
vote. At the time of the adoption of the Constitution,
property qualifications for voters were general and
these or other ones may still be maintained by states,
if they so decide ; but, since the Constitution guar-
antees a republican form of government to each state,

AMERICAN LEOISLATURES

there can be no suffrage law inconsistent therewith,
nor one which can be classed as a bill of attainder or
ex post facto law. The fourteenth amendment to the
Constitution, passed shortly after the close of the
Civil War, gave Congress power to reduce the repre-
sentation of any state in the House of Representa-
tives, ‘‘when the right to vote at any election for the
choice of electors for President and vice president of
the United States, representatives in Congress, the
executive and judicial officers of a state, or the mem-
bers of the legislature thereof, is denied to any of the
male inhabitants of such state, being twenty-one years
of age and citizens of the United States, or in any way
abridged, except for participation in rebellion or
other crime.” The reduction is to be according to
the proportion which the number of male citizens
denied suffrage shall bear to the whole number of
male citizens twenty-one years of age in such state.
The provision was intended to prevent the disfran-
chisement of negroes in the Southern states, but Con-
gress has passed no law attempting to enforce it, A
further limitation upon the power of the states over
suffrage is found in the fifteenth amendment, which
provides that “the right of citizens of the United
States to vote shall not be denied or abridged by the
United States, or by any state, on account of race,
color, or previous condition of servitude.” ;^It will be
noted that this provision is worded in negative terms
and does not refer to any class of persons, such as
women, who have not previously enjoyed the elective
franchise, nor to discriminations by a state not based
on “race, color, or previous condition of servitude,”

THE CONGRESS OF THE UNITED STATES

such as an educational or property qualification. The
constitutionality of the so-called grandfather clause^’
in some Southern states, admitting to the suffrage men
because they or their ancestors possessed the right to
vote prior to the time when occurred the admission
of negroes to the suffrage, has not been passed upon
by the Supreme Court of the United States. While
at present suffrage at all elections has been granted to
women only in a minority of the states, the movement
is making rapid progress, and already the feminine
voters are exercising an appreciable influence in the
jurisdictions where they have been granted political
rights. It is worthy of note that a person may have
the right to vote for a congressman in one state and
may lose it on removal to another state.

The times, places, and manner of holding elec-
tions for senators and representatives shall be pre-
scribed in each state by the legislature thereof, but
the Congress may at any time by law make or alter
such regulations, except as to the places of choosing
senators. ” However inexpedient it might be to place
congressional elections under federal control, there
is no doubt as to the constitutionality of a law pro-
viding that the direction of such elections be taken
from the hands of the state officials with whom it is
at present lodged. In fact, however, though there has
been federal supervision of congressional elections,
the only provision of any importance made by Con-
gress and now in force, is that all congressmen, ex-
cept where a state statute enacted prior to the national
law fixes a different date, shall be elected on the
Tuesday after the first Monday in November, Tues-

11

AMERICAN LEG-ISLATURES

day, being near raid-week, is a convenient day for
most men to go to the polls, and it is advisable to
avoid placing elections on the first day of the month,
which is usually a time of especially urgent business
engagements. Oregon still elects congressmen in
June, Vermont and Maine in September, in virtue of
old unrepealed laws.

As to the election of senators, the federal statutes
were much more minute and exacting. The Oonstitu-
tion states that the Senate of the United States
shall be composed of two Senators from each State
chosen by the Legislature thereof, for six years, and
each Senator shall have one vote.’’ The further pro-
vision, forbidding Congress from legislating as to
the place where senators should be elected, was in-
serted to prevent the legislature from being sum-
moned to some inconvenient place. It has been set-
tled by uniform acquiescence, that the governor of a
state is not a part of the legislature thereof when a
senator is to be chosen. The election could be made
either in joint convention, in which a majority of the
whole legislature took part, or by joint action of both
houses of the legislature acting separately. In 1866,
Congress passed an act which was long in force and
which governed senatorial elections. Under this act
“the legislature of each State, which is chosen next
preceding the expiration of the time for which any
Senator was elected to represent such State in Con-
gress, shall on the second Tuesday after the meeting
and organization thereof, proceed to elect a Senator.”
On that Tuesday, the houses of the legislature voted
separately and viva voce for a senator, each member

12

THE CONGRESS OF THE UNITED STATES

naming Ms choice. The result of the vote was entered
on the journals of the respective houses and, at noon
on the succeeding day, the legislature convened in
joint assembly and listened to the reading of these
journals. If it appeared that any one person had re-
ceived a majority of the votes in each house he be-
came senator. But if this was not the case, or if
either house had failed to take proceedings as re-
quired, the joint assembly, by viva voce majority
vote, elected a senator.

The method of election was changed by the 17th
Amendment to the Constitution, adopted in 1913. It
is there provided that senators are to be elected by
popular suffrage in the same manner as Congressmen.
Even before the adoption of this amendment, a number
of states had made arrangements for the nomination

of Senators by direct primaries; and although the "

legislatures were not constitutionally bound to carry
out the behests of the electors in this matter, yet ordi-
narily political exigencies would have made such a
course inevitable. In Oregon, candidates for legisla-
tive positions were by law required to indicate whether
or not they would support the popularly nominated
candidate for the Senate. Of the new method of elec-
tion it is expected that it will tend to improve the
personnel of the Senate and also to save the legisla-
tures from corruption and from the waste of time
through senatorial deadlocks, so frequent in the past.

Having considered the elections to Congress, let us
now review the qualifications of its members. Each
representative must ‘‘have attained the age of twenty-
five years and been seven years a citizen of the United

-13

AMEEICAN LEGISLATURES

States’’ and must, ^‘wRen elected, be an inhabitant
of that State in which he shall be chosen.” Senators
are required to be maturer men. They must be thirty
years old, have been citizens for nine years, and be
inhabitants of the states they represent. It is notice-
able that members of neither house are required to
' have citizenship in the state which they represent,
although their residence is required to be there. In
practice, an added requirement as to residence for
each congressman is that he shall be an inhabitant
of the district from which he is chosen; though in
cities, such as New York and Baltimore, residents of
one part of the city have occasionally been chosen
from a district other than that in which they live.
Members of Congress are not considered to be officers
of the United States,' and such an officer is distinctly
forbidden from being a ‘^member of either house dur-
ing his continuance in office,” lest his devotion to
duty be divided. In this we differ widely from Eng-
land, all of whose cabinet members must be also mem-
bers of Parliament, in which body, moreover, officers
in the army and navy often sit.

The fourteenth amendment excludes from Congress
any person ‘‘who having previously taken oath as a
member of Congress, or as an officer of the United
States, or as a member of any State Legislature, or
as the executive or judicial officer of any State, to
support the Constitution of the United States, shall
have engaged in insurrection, or rebellion against the
same, or given aid or comfort to the enemies thereof. ’ ’
This clause was inserted to meet the conditions exist-
ing at the close of the Civil War; but Congress has

14

THE CONaEESS OP THE UNITED STATES

taken advantage of the power given it to remove such
disability by a vote of two thirds of each house to
such an extent that it is believed that there is no per-
son now living who suffers from such disability.
While these disabilities were in force, it was held
that the election to Congress of a person suffering
from them was voidable but not void, and that a
subsequent removal of the disability entitled him to
his seat. A person not properly qua may sit in
Congress, if no one calls attention to the lack of quali-
fication. Thus Henry Clay took his seat in the Senate
before he was thirty years old. The states have no
power to add to the qualifications which are required
for membership in either house of Congress and all
laws which attempt to do so are mere self-denying
ordinances. Thus when, in Maryland, the state statute
provided that one of the senators should come from
either shore of the Chesapeake Bay, it was a mere ex-
pression of the intention of the legislature and, in
fact, a second senator was chosen from the western
shore a month before the law was repealed. Story
weU says, that, if a state legislature has power to add
to the qualifications, state may, with the sole ob-
ject of dissolving the Union, create qualifications so
high and so singular that it shall become impracticable
to elect any representative. It would seem but fair
reasoning, upon the fairest principles of interpreta-
tion, that, when the Constitution established certain
"qualifications as necessary for office, it meant to ex-
clude all others as prerequisites.^^

Each house is the sole judge of the elections, re-
turns, and qualifications of its own members ; and

15

AMERICAN LEdlSLATUEES

also has the power to punish a member for dis-
orderly behavior by reprimand, suspension, or
otherwise, and with the concurrence of two thirds,
to expel him. The distinction between the right
to refuse admission and the right of expul-
sion is important, since the former can be ex-
ercised by the majority of a quorum, whereas ex-
pulsion requires the affirmative vote of two thirds of
a quorum. The final qualification of the elected mem-
ber to hold his seat is the taking an oath or affirma-
tion to support the United States Constitution before
the body to which he has been elected, after which
proceeding he is vested with the full powers of mem-
bership.

When a vacancy occurs in the House of Repre-
sentatives, the governor of the state in whose delega-
tion the vacancy exists, is directed to issue writs of
election to fill the residue of the term. Such vacancy
may arise by death, expulsion, resignation, removal
from the state, or setting aside of a previous election
by the House of Representatives. The date of the
election is in the discretion of the governor, who may
call a special election, or permit the vacancy to be
filled at the next regular election. A member of
either house of Congress may resign his seat at any
time, by a letter addressed to the governor of the
state which he represents, and it has been held that
neither the governor, nor the house from which he
withdraws, has the right to refuse to accept his resig-
nation. At the time the resignation is sent to the
governor, it is customary for the member to address
a letter to the presiding officer of the house to which
■ 16 ^

THE CONGRESS OF THE UNITED STATES

lie belongs, apprising the Rouse, tbrougli this pre-
siding officer, of the fact of his retirement. The res-
ignation may be made to take effect' at once, or npon
some date in the future, although the former is much
more common. Vacancies in the Senate, occurring
during the recess of the legislature of any state, were
formerly filled by the temporary appointment of the
governor, whose appointee held office until the next
meeting of the State legislature, when the duty to fill
such vacancies devolved upon the latter. It was held
in the case of Senator Quay of Pennsylvania, that the
governor had no power to appoint, when the legisla-
ture had met and adjourned without filling the sena-
torship. The 17th Amendment provides that where
vacancies happen in the representation of any State in
the Senate the executive authority of such state shall
issue writs of election to fill such vacancies, provided
that the Legislature of any State may empower the
executives thereof to make temporary appointments
until the people fill the vacancies by election as the
Legislature may direct.^’

When the first Senate assembled in 1789, it divided
its members by lot, in accordance with the constitu-
tional provision, "’as equally as may be into three
classes. ’ ’ The senators in the first class served for two
years, those of the second class for four years, and
those of the third class for six years, so that one
third might be chosen every second year, and the
Senate became a continuous body, with more than a
majority of members holding over at any one time.
Care was taken not to place any two senators from
the same state in the same class and, when a new

2 17

AMERICAN LEGISLATURES

state is admitted to the Union, its senators are placed
by lot in these classes, only one being added to any
one class, in such manner as to keep the classes as
nearly equal in number as possible.

At least one session of Congress must be held each
year and the beginning of this regular session is on
the first Monday in December, unless Congress by
law appoints a different day. During the difficulties
between President Johnson and Congress, the begin-
ning of the first session of each Congress was fixed on
the fourth of March ; but the law was soon repealed
and, except for this brief period, the December date
has always been observed. It has one obvious disad-
vantage, —that the election of members has taken
place thirteen months previously and that they do not
come to the work of legislation fresh from the voters.
The first regular session may continue for an indefi-
nite time, even to the beginning of the second regular
session; but, in practice, this first, or long, session
usually ends in the early summer and it has never
lasted later than October 20. The second regular or
short session ends on the fourth of March, as the
terms of the members of the House ai’e then ended.
Extra or special sessions of Congress, or of either
house, may be called by the President, whenever in
his opinion an emergency justifies it. Special ses-
sions of the Senate have often been called to act upon
appointments to office and upon treaties, but no spe-
cial session of the House of Representatives sepa-
rately has ever been called and it is difficult to see
for what purpose it could be convened. The members
of Congress are to be considered as representatives of
' ' 18 ''

THE CONGEESS OF THE UNITED STATES

their constituents and not merely as delegates. It is
their duty to legislate for the benefit of the whole
country rather than for the narrower interests of the
district or state whence they are chosen. Though
they will of course consider carefully the wishes of
those who sent them to Congress, they are not legally
bound to carry out detailed instructions from them,
nor are they obliged to resign even if their constitu-
ents, displeased at their action, should demand it^
This unlimited power of representation was doubted
in the early years of the Republic, especially in the
Southern states and with respect to the members of
the Senate, but it is now universally admitted as to
both houses.

The House of Representatives chooses all its officers.
Its presiding officer is known as the speaker,— a name
derived from the similar officer of the English House
of Commons, who is so Imown because he is the
mouth-piece of the House in its intercourse with the
King. The speaker is always a member of the House,
the other officers are not now members, although the
clerk was formerly often selected from among the con-
gressmen. The clerk holds his office until the follow-
ing House is convened, calls the new House together,
and presides until a speaker is elected. Although this
election is usually quickly made, the 34:th and 36th
Congresses arrived at a choice only after bitter strug-
gles lasting for a number of weeks. As the speaker
is a member of the House, he has a right to vote upon

^ The Constitution has, indeed, not provided any means by
which sneh instructions or demands may be legally and authori-
tatively originated by the electorate.

X9

AMERICAN LEaiSLATIJRES

all q-aestions, and is in fact required to do so when-
ever his vote will decide the pending question, or
when the vote is by ballot. In consideration of his
arduous labors and dignified position, he receives a
salary of $12,000 a year, while the other eongressmen
receive only $7,500. The speaker must authenticate
by his signature all communications made by the
House to other branches of the government. He ap-
points all select committees and presides and pre-
serves order during the sessions. One of the most
famous speakers, Thomas B. Reed, thus summarized
his duties: 'Ht is the duty of the presiding officer to
call the assembly to order at the time appointed for
the meeting, to ascertain the presence of a quorum,
and cause the Journal or minutes of the preceding
meeting to be read and passed upon by the assembly.
To lay before the assembly its business, in the order
indicated by the rules. To receive any propositions
made by the members and put them to the assembly.
To divide the assembly on questions submitted by him
and to announce the result. To decide all questions
of order subject to an appeal to the assembly. To
preserve order and decorum in debate and at all other
times. To enforce such of the rules of the assembly
as are not placed in charge of other officers, or of
which the enforcement is not reserved by the assem-
bly. To answer all parliamentary inquiries and give
information as to the parliamentary effect of pro-
posed acts of assembly. To present to the assembly
all messages from coordinate branches and all proper
communications. To sign and authenticate all the
acts of the assembly, all its resolves and votes. To

20

THE CONGRESS OF THE UNITED STATES

name a member to take his place until adjournment
of the meeting and in general to act as the organ of
the assembly and as its representative, subject al-
ways to its will.’/ Among the other officers of the
House are the sergeant-at-arms, who' must preserve
order, the doorkeeper, the postmaster, and the chap-
lain. All these officers are chosen by majority vote
of the House, hold their offices until their successors
are elected and have qualified, and appoint their sub-
ordinates. The senators receive the same salary as
members of the House and, like them, choose their
officers, with the important exception that the vice-
president of the United States is ex officio the presi-
dent of the Senate, in which position, however, he
has no vote, unless the members are equally divided
on a question. The Senate chooses a president pro
temporey who presides in the absence of the vice-
president, or when he exercises the office of President
of the United States. It is customary for the vice-
president, shortly after taking the oath of office, to
absent himself from the Senate for a day, in order
that a president pro tempore may be chosen. The
tenure of this officer is at the pleasure of the Senate
and, as he is always a member of the body, he has
a vote on all questions. The other officers of the
Senate are about the same as those of the House and
bear the same names, except that there is a secretary
instead of a clerk.

Each house determines the rules of its proceedings.
The Senate rules continue in force until changed, but
each House of Representatives is a new body and
therefore makes a new set of rules, carrying on busi-

21 '■

AMEEICAN LEGISLATUEES

ness under the common parliamentary law, until the
rules are adopted. It is usual for each house, at first,
to adopt the rules of the last one, in whole or in part,
and to make relatively few changes in them, in fram-
ing its own rules.

The senators’ and representatives’ salaries are fixed
Ky law and have remained at their present figure since
1911. Each Congress has absolute power over its own
pay and, in every ease of change, the law has been
made retroactive, so as to take effect from the begin-
ning of the Congress which made it. In addition to
the salary, each member receives an allowance for sta-
tionery of $125 each year, a mileage of twenty cents
per mile every session, and the privilege of appoint-
ing a private secretary at a salary of $1200 per
annum. The members of the Confederation Congress
were paid by the states, those of the British Parlia-
ment are not paid at all ; but it was felt that the mem-
bers of the national Congress should be paid by the
Nation. The long distances traversed by the members
from their homes to the capital, the lack of a leisure
class, the feeling that poor men ought not to be ex-
cluded, and the reasonableness of the rule that the
state should make all legislators a fair recompense
for their services, caused a rejection of the British
precedent. Members also have certain personal privi-
leges which were granted by analogy of those of mem-
bers of Parliament. Thus they are privileged from
arrest, in all cases except treason, felony and breach
of the peace, at the session of .their respective houses
and in going to and returning from the same. Clearly
the country ought not to be deprived of the services of

22

THE CONGRESS OF THE UNITED STATES

its representatives, unless they have been guilty of
grave offences. Another important privilege is that
senators and representatives shall not be questioned
in any other place for any speech or debate in either
house, and so shall not be responsible out of Congress
for words spoken in that body, which responsibility
might unduly limit freedom of debate.

There are also certain restrictions imposed upon a
senator or representative. He may not, during the
tinie for which he was elected, be appointed to any
civil office under the authority of the United States,
which shall have been created or the emoluments of
which shall have been increased during such time ;
and no person holding any office under the United
States shall be a member of either house during his
continuance in office.’’ These disqualifications were
intended to prevent corrupt bargains and understand-
ings between the Executive and members of Congress
and to keep the two branches of government distinct.
There is no prohibition, however, on the appointment
of a senator or representative to a naval or military
office newly created or increased in salary, nor to the
appointment of a member of Congress to such a civil
office immediately upon the expiration of his term,
nor to his appointment to a civil office created before
his term began, provided he resign his seat to accept
such office.

A majority of each house constitutes a quorum to
transact business and a majority of this quorum is
sufficient to carry all measures except bills which the
President has vetoed and amendments proposed to
the Constitution, for which two thirds of a quorum

23

AMERICAN LEGISLATURES

are needed. It will be seen that with a bare quorum
present, favorable votes of one more than one fourth
of the total members may carry an ordinary measure,
but this minimum is usually exceeded. In most of
the Congresses since the Fifty-first, the speaker has
had power to “count a quorum” in certain cases, that
is to say “at the suggestion of the speaker the names
of members sufficient to make a quorum in the hall of
the House, who do not vote, shall be noted by the clerk
and recorded in the Journal and reported to the
speaker, with the names of the members voting, and
be counted and announced in determining the pres-
ence of a quorum to do business.” If a quorum is
not present, the Constitution permits a smaller num-
ber to adjourn from day to day and authorizes them
to compel the attendance of absent members, in such
manner and under such penalties as each house may
provide. The House of Representatives, by its rules,
has fixed the smaller number at fifteen, the Senate
has named no particular number. With this power,
whenever a quorum is found wanting by call of the
roll or count of the presiding officer, the sergeant-at-'
arms may be furnished with a list of those members
whom a call of the House discloses as absent and be
sent to request, or if necessary to compel, the presence
of those absent members.

Each house must keep a journal of its proceedings,
that is a record of what was done at the sessions, and
this journal for each day is read and corrected, if
need be, at the beginning of each succeeding day ’s
session. The journal, or record of things done, should
be distinguished from the stenographic report of the

24

THE COKGEESS OF THE UNITED STATES

debates which, as published, is known as the ^^Con-
gressional Eecord. ’ ’ In the early Congresses, the Sen-
ate ’s sessions were secret, so that we have no official
record of its debates; at present, the Senate maintains
secrecy in the ^'executive sessions’’ in which it dis-
cusses communications from the President concerning
foreign affairs, treaties, and nominations to federal
offices. The Constitution requires that the journal be
I)ublished from time to time, except such facts as
may in the judgment of the houses require secrecy.”

There are a number of ways in which measures are
voted upon in Congress. The most usual manner is
viva voce, in which the presiding officer decides the
result in the affirmative or negative, according to the
greater volume of the combined voices of those voting
on either side. If he is in doubt, he asks the members
to rise while he counts them; and if his decision is
questioned and a division” of the House called for,
the count must be made and the result announced to
the speaker by two tellers, between whom the members
pass. A more formal method of voting is by yeas and
nays, in which the clerk calls the roll and records
after each man’s name “yea,” “nay,” “absent,” or
“'not voting.” This method puts a man upon record
and shows his constituents and the world at large how
his vote was cast. The Constitution provides that
“the yeas and nays of the members of either house on
any question shall, at the desire of one fifth of those
present, be entered on the journal.”

In case a house wishes to postpone business for a
short while, it may take a recess ; if it has concluded
all the business of the day it may adjourn until the

25

AMERICAN LEGISLATURES

following day, or indeed for more than one day ; but
the Constitution wisely prevents friction and dead-
^ locks between the two houses, by providing that
1 ‘'neither house, during the session of Congress, shall,
without the consent of the other, adjourn for more
than three days, nor to any other place than that in
which the two houses are sitting. ’ ’ By mutual agree-
ment, the two houses may adjourn to any day cer-
tain, or, if they wish to end the session, adjourn in-
definitely or sine die. As the President has the power
of convening Congress in extraordinary session, so
he also has the power, in case of disagreement between
the houses with respect to the time of adjournment,
to adjourn them to such time as he shall think proper.
It has never, however, been found necessary to exer-
cise this power.

While in session, practically all of the business of
the houses is referred to committees and important
measures are often discussed informally by the whole
I House, in what is known as Committee of the W'hole.
The committees are of two kinds: standing, that is,
appointed under the standing rules of the House and
dealing with some permanent branch of legislation;
.and select, that is, such as are appointed to consider
some particular question. The committees may also
be classified by cross division into joint committees,
in which there are members from both houses, and
committees composed entirely of members from one
house. The committees are usually arranged so that
the chairman and the majority of the members are
chosen from the adherents of the political party which
has a majority in the membership of the body. In
, 2.6 ■■

THE CONGRESS OF THE UNITED STATES

a recent Congress (the Fifty-ninth), there were fifty-
five standing and ten select committees of the Senate
varying in membership from three to seventeen ;
while in the House of Representatives there were
sixty-one standing committees, varying in member-
ship from five to nineteen. As every bill is referred
to a committee, it is easy to see how these bodies can
control legislation, by failing to report measures re-
ferred to them or by casting the weight of their influ-
ence for or against certain bills by favorable or un-
favorable reports.

Every measure introduced into Congress is put in
the form of a bill or a resolution. A b.ill,.,whe passed,
becomes an act and is distinguished by the enacting
clause which reads thus, ^‘Be it enacted by the Con-
gress of the United States,’^ A resolution contains
the word resolved in place of enacted. Resolutions are
usually of a less permanent character than laws and
express rather the opinion of the Legislature, but it
is frequently difficult to distinguish them from laws
in their subject matter. Resolutions are classified as ;
joint, that is, requiring the action of both houses ;
concurrent, where the same words are adopted by each
house independently of the other ; and several, that is,
passed upon only by one house. The ordinary course
of a bill or resolution which is passed through the
house involves three readings on three different days,
between which readings it is referred to and re-
ported on by an appropriate committee, engrossed or
written out in a fair hand by a copying clerk, and
printed. Having passed one house it is sent to th:;
other where it goes through the same procedure, ex-
' 27

AMEEICAN LEGISLATURES

eept tliat a second engrossing and printing is not
necessary. In either house, the bill may be amended,
and, if the two houses agree as to the general princi-
ple of the bill, but differ as to details, a joint com-
mittee of conference, appointed especially to consider
the bill, endeavors to come to an agreement which
both houses may accept. When a bill has passed both
houses, it is submitted to the President of the United
States. Mf he approve it, he signs it and it then be-
comes a law. If he disapprove of it, he ^ ‘ shall return it,
with his objections, to that house in which it shall
have originated, ’ ’ which procedure is known as a veto.
The President has ten days (Sundays excepted) to
sign or veto a bill. If he does neither within this
time, the bill becomes a law without his signature, so
that his obstruction may not prevent legislation. He
is entitled to the full ten days for consideration and,
as it is held that he cannot sign a bill when Congress
is not in session and, of course, cannot return it with
objections, if the house is not sitting to consider the
objections, all bills sent to the President within ten
days of the end of the session and not signed by him
before the end of the session fail to become laws for
lack of signature. This is sometimes called the Presi-
dent ^s pocket veto. In order to prevent Congress from
evading the veto power, by placing the subject matter
of a law under some other form, the Constitution pro-
vides that ‘'every order, resolution, or vote, to which
the concurrence of the Senate and House of Repre-
sentatives may be necessary’’ shall be presented to
the President and that the subsequent procedure upon
it shall be the same as that of a bill. Votes on a ques-

28

THE CONGEESS OF THE UNITED STATES

tion of adjournment, on wMch. the wishes of the houses
should be unfettered, are the sole exception to this
rule. If the President vetoes a bill, the house to
which he returns it shall enter the objections at
large on their journal and proceed to reconsider the
bill. ’ ^ If after such reconsideration, two thirds of that
house shall agree to pass the bill it shall be sent together’
with the objections to the other house, by which it shall
likewise be reconsidered and, if approved by two thirds
of that house, it shall become a law. But in all such
cases, the votes of both houses shall be determined by
yeas and nays and the names of the persons voting
for and against the bill shall be entered on the journal
of each house respectively.’’

Amendments to the United States Constitution may
be proposed to the several states by an affirmative
vote of two thirds of both houses of Congress. These
amendments are not presented to the President for his
signature, as they have already received a vote which
would be sufficient to overrule a veto.

In addition to the several functions which they ex-
ercise in common, the two houses have certain special
functions. Thus the Senate acts as a part of the
treaty-making power, a vote of two thirds of a quo-
rum being required to concur in any treaty made by
the President of the United States, before it can go
into effect. So, too, the Senate acts as a council to
the President in regard to filling offices, for the Con-
stitution provides that ‘‘he shall nominate, and by
and with the advice and consent of the Senate shall
appoint, ambassadors, other public ministers, and
consuls, judges of the Supreme Court, and all other

29

AMEEICAN LEGISLATURES

officers of tlie United States, whose appointments are
not otherwise provided for” by the Constitution and
which offices shall be established by law. As the
country has grown, it has become impossible for the
Senate to consider all appointments to office or even
for the President to nominate all officers directly, and
advantage has therefore been taken of the further
provision of the Constitution that Congress may,
by law, vest the appointment of such inferior officers
as they think proper in the President alone, in the
courts of law, or in the heads of departments.” As
a result, the greater number of inferior officers re-
ceive no congressional confirmation. If a nomination
to office is made by the President to the Senate and is
rejected, there is nothing in the Constitution to pre-
vent him from sending the same name in again ; but,
in practice, this is almost never done, unless requested
by the Senate when it has rejected the nomination
under a misapprehension. It may happen that the
Senate fails to act upon a nomination by final ad-
journment and that the term of the incumbent ex-
pires before another session convenes. In that case, a
vacancy in the office occurs which may be filled in the
same manner as a vacancy arising in any other manner.
The President has power to fill up all vacancies that
may happen during the recessof the Senate, by granting
commissions which shall expire at the end of their next
session.” j^-The Senate also has the special power of
choosing the vice-president of the United States from
persons receiving the two highest numbers of votes in
the Electoral College, when no one candidate has a
majority of the electoral votes for that office.

30

THE CONGRESS OF THE UNITED STATES

The Senate has the sole power to try all impeach-
ments, sitting for that purpose as a high court, with
its members under oath or affirmation specially taken.
The President, vice-president, and all civil officers of
the United States may be brought before this court on
charges of treason, bribery, or other high crimes and
misdemeanors, which unlawful acts need not be statu-
tory crimes. When the President of the United States
is tried, the chief justice of the Supreme Court pre-
sides, but he has no vote in the final decision. No per-
son may be convicted in this court without the con-
currence of two thirds of the members present. Im-
peachment is a cumbrous remedy for evils and has
been used only eight times. The most famous im-
peachment trial was that of President Andrew John-
son, the most recent one that of Judge Archbald,
removed in 1913. Military and naval officers are not
impeached but are tried by courts martial. The right
to bring an impeachment resides in the House of Rep-
resentatives, as a survival of the old power of the
House of Commons to act as the Grand Inquest of
the State. When it votes to impeach an officer, it also
appoints managers of the trial, who act as prose-
cutors on behalf of the House.

Another special power of the House of Representa-
tives also comes to it from the English House of Com-
mons, namely, the exclusive right to introduce money
bills, or those which provide revenue for the carrying
on of the government. This power was in the English
House, because it alone, as representative of the peo-
ple, could grant their money to the crown. In the
United States, there is no very important reason for

31

AMERICAN LEGISLATURES

Testing the power in the House of RepresentatiTes,
and as the Senate may amend such bills to an un-
limited extent, the power is not a very important one.

A third power belonging to the House of Repre-
sentatives alone is that of choosing the President of
the United States, when the majority of votes in the
Electoral Colleges are not cast for any one man. In
this case, the House votes by ballot and by states, each
state casting one vote and voting for one of the three
persons receiving the highest number of votes in the
Electoral Colleges. For this purpose, a quorum con-
sists of a member or members from two thirds of the
states and a majority of the states is necessary to a
choice. In 1801 and in 1825, this function fell to the
House.

The common power belonging to the two houses
of Congress in the matter of elections is to meet in
joint convention after the voting of the Electoral
Colleges for President of the United States, at which
time the Constitution provides, the president of the
Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates,
and the votes shall then be counted.

32

CHAPTER 11

THE HOUSE OF REPRESENTATIVES

On acconnt of the federal nature of our constitu-
tional system, Congress lias next to nothing to do with
the general civil law. The legislation affecting the
ordinary relations between individuals, or the general
rules of civil action, originates in the state legislatures,
in as far as the development of the common law is not
left entirely to the courts. While Congress, in the
exercise of such powers as that to regulate inter-
state commerce, may originate rules by which people
in general are bound in their business relations, such
action does not constitute a large part of its work,
and its legislation is ordinarily regulative of govern-
mental agencies, or in other words, administrative.
The most cursory examination of the legislative work
in any session of Congress will reveal the extent to
which its attention is taken up with matters of admin-
istrative policy. Consider, for example, the topics of
legislation in a recent Congress— the Fifty-seventh ;
they fairly indicate the character which congressional
action usually takes. The principal work of that
Congress embraced the following subjects the crea-
tion of the Department of Commerce and Labor, the

33

AMERICAN LEGISLATURES

Elkins anti-rebate law, the provision for the perma-
nent census bureau, the maintenance of Chinese ex-
clusion, the beginnings of the Panama canal, the
establishment of civil government in the Philippines
with the extension of the gold standard thereto, the
creation of the general staff, the establishment of a
national militia system, irrigation grants for the
arid lands of the West, the augmenting of immigration
restrictions, the anti-oleomargarine act, the new bank-
ruptcy law, the repeal of the Spanish war-taxes, the
removal of the duty on anthracite, and the appropria-
tion of over $1,500,000,000. The chief business of
Congress is the appropriation of money for the work
of the various departments of government, the pro-
viding of ways and means to meet this expenditure,

* the creation of new administrative agencies, the main-
tenance of the national defense on land and sea, the
control of the various wards of the nation— the In-
dians and the people of the territories and depend-
encies— the regulation of economic activities as far
as they form part of inter-state commerce, and the
administration of what remains to the United States
government of natural wealth in forests and other
public lands.

Congress is therefore constantly dealing with ad-
ministrative policies, and it is inevitable that there
should be a struggle for influence and power between
the President and Congress, as well as between the
two houses. New channels of public authority are
being worn at the present time, the direction of which
it seems beyond human contrivance to modify. Men
are becoming conscious of the implied logic of our

34

THE HOUSE OF EEPRE SENT ATI VES

institutions, and are beginning to feel that the or-
ganic life of government and the struggle of political
entities for predominance cannot be confined within
the dry principles of the theory of the balance of
powers. As yet it is by no means clear in which direc-
tion the center of gravity of our political system is
bound to settle. It is indeed still believed by many that
it will be possible to maintain the permanent equi-
librium between the various departments of govern-
ment; that considering the existence of really great
powers and functions in each of the branches, it will
largely depend upon the personal equation as to where
at any given time the principal authority may be found.
According to this view there is a pendulum swing of
political influence, but no branch of the government
can hope for a permanent conquest of the supreme
power. The character of the presidency will depend
upon whether a Jackson, a Tyler, a Johnson, or a
Cleveland is the incumbent of that office; and the;
ability, moderation, and political mastery of the lead-
ers of the two houses will have a great influence in
determining the relative position of these bodies.
This view of the continuous balance of political power,
though containing much truth, nevertheless rests on
a superficial foundation; for it is usually based on
purely legal reasoning. The history of institutions
shows that there is a deeper current than mere per-
sonal influence or legal arrangement which deter-
mines the rise and faU of the power of the various
organs of government. It is rather through a study
of the manner in which institutions identify them-
selves with social forces that a cue may be found for

35

AMERICAN LEGISLATURES

an understanding of the logic of institutional develop-
ment. In proportion as an institution or magistracy
succeeds in making itself the index and exponent of
the most pervading economic and social forces within
the national life, its influence rises or falls. It is also
important to consider how the various interests within
the nation are organized, as upon this depends the
effectiveness of the support which they are able to
give to an organ which primarily represents them.
On account of the growing intricacy of social and
economic interests, a more and more complex system
of governmental agencies—including the representa-
tive bodies— is being developed. It will therefore
readily be seen how absolutely inadequate for a satis-
factory judgment of the real distribution of political
powers among the various organs of government would
be the merely logical analysis of their constitutional
functions, without a consideration of the social and
political background upon which the exercise of these
functions rests. Nevertheless a careful analysis of
this nature must constitute the first, though only the
introductory, part of the study of the constant struggle
for political power which is being waged between the
great organs of state life. This analysis has led inter-
preters to varying conclusions. According to some,
Congress through its power of general legislation and
of specific interference with the administrative de-
partments, is destined to become the virtual depositary
of the sovereign authority ; while in the view of others
the magisterial authority of the President places him
in a position where he will become more and more
the central force in the government, and the original

36

THE HOUSE OF EEPEESENTATIVES

source of action will be found in the administrative
departments.

We may be pardoned for reviewing the cardinal
factors in tbe situation, although they are of course
present in the mind of every student of the Constitu-
tion. Such a review will show clearly what is in-
volved in the question as to whether a permanent
equilibrium between the organs of government is
possible, and what are the points of vantage from
which each of them may defend its influence and im-
portance.

The President’s position is to some extent based on
his veto power, which makes him a participant in
legislative action, but the real source of his import- \
ance lies in the various elements which constitute his |
magisterial authority. The latter comprises far more
than the routine of executing such laws as Congress
may make. In international affairs the President’s
initiative may ordinarily determine the course of
action taken by the national government, and al-
though the President cannot declare war he has very
frequently the opportunity of causing it. In domes-
tic affairs his control of the scientific and technical j
branches of the administration, his power to enforce
the laws, including the provisions of the Constitu-
tion, give him a discretionary authority the implica-
tions of which are just beginning to be realized. Re-
cent political campaigns have also shovm that the
President may exercise a very strong influence within
and through the party organization.

The Senate, in the eye of the public the chief com-
petitor of the President for predominant authority,

37

AMERICAN LEGISLATURES

has also a formidable array of powers together with
great advantages of organization. It is a permanent
body, large enough to be representative of many in-
terests, small enough to be permeated by an intense
feeling of solidarity; through its power over treaties
it exerts a strong influence over the conduct of for-
eign affairs; it shares in the appointment of high
officials, including the justices of the Supreme Court ;
it exercises a detailed supervision of administi'ative
departments; and its relations to the House give it
ordinarily a controlling influence over appropriations
and general legislation. It has a close organization,
flexible, subtle and powerful for action. Its rules of
courtesy^’ give prominence and dignity to its indi-
vidual members. It has in the recent past enjoyed
great political power in the party organizations, en-
abling its members or groups of them to make Presi-
dents and members of the House of Representatives.
Its influence is increased by the great material power
enjoyed by some among its members, and by the inti-
mate connection of senators with such economic inter-
ests as insurance, railways, express companies, mining
and industrial corporations.

Compared with such powerful organs as the Execu-
tive and the Senate, the House of Representatives at
first sight appears in a position of considerable disad-
vantage. However, on account of direct and frequent
elections by the people, it may claim importance as
affording a just index of popular feeling which can-
not safely be disregarded ; moreover, the concentrated
power of the speakership offers great opportunities to
a leader of real ability for influencing the conduct of

38

THE HOUSE OF REPRESENTATIVES

piibiic affairs. After a more careful analysis of the
political powers of the House and of the machinery
there provided for producing legislative action, we
shall be in a position to judge more intelligently of
the true tendencies of political development and of
the chances whether any one organ of government
may be able to draw into its hands all the principal
political powers.^

The history of the House has brought out very
clearly the inherent weakness of government by dis-
cussion. Created at a time when men were afraid of
executive discretion, our government is constituted
in such a way as to give Congress a better opportunity
for exercising power than any other parliament, with
the exception of that of Great Britain, has ever pos-
sessed. The belief of the nation in government by
discussion remained very strong throughout the
greater part of the nineteenth century. Men were
elected as representatives because they could talk—
selected indeed almost entirely from a profession
trained in public discourse ; and discussion of political
problems v/as for a long time the main intellectual

^ As it would be impossible in this place to give a detailed
account of the historic development of procedure in Congress,
familiarity with the results presented by Mr. Bryce in his

American Commonwealth,^’ by President Woodrow Wil-
son (^^Congressional Government”), Miss Follett (^^The
Speaker”), and Dr. McConaehie (^‘Congressional Commit-
tees”), is presupposed by the author, who will confine his at-
tention principally to the tendencies which have revealed them-
selves more clearly since these books were written, and to an ac-
count of the present political situation im the House of Repre-
sentatives and the Senate.

39

AMERICAN LEGISLATURES

interest of the nation. And yet in proportion as eco-
nomic life became diversified and complicated, gov-
ernment by deliberation began to fail. The very
macbinery of government by discussion was constantly
used by powerful private interests for tbe purpose of
obtaining special franchises and other privileges, and
of defeating any general legislation that might be un-
favorable to them. The spirit of institutions thuf
suffered a radical change and the freedom of parlia
mentary discussion was gradually more and more
circumscribed.

The development outlined above has taken place
more or less in all the legislative bodies of the nation.
In the two houses of Congress different aspects of
this tendency revealed themselves. For in the Senate
discussion frequently became trivial and meaningless
on account of its very abundance, and the narrower
interests there represented found the lack of parlia-
mentary restrictions admirably adapted to their spe-
cial purposes. Whereas, in the House, unwieldy and
loosely organized as it was until very recent times,
frequent and immoderate obstruction rendered al-
most impossible the continuance of the legislative busi-
ness. The House therefore decided, or rather circum-
stances decided for the House, that power must be

concentrated in the hands pi .a few leaders. The

theory of democracy is favorable to a dispersion of
power ; concentrated authority is feared ; power must
be divided among a large number of officials or agen-
cies; and great reliance is placed upon a system of
checks and balances. It has, however, become clear
that government is not a matter of mathematical

40

THE HOUSE OP REPEE SENT ATI VEB

computation, but a matter of life and action, and
that a governmental organ whose efSciency has
been impaired by the dispersion of authority will
instinctively seek an agency through which after all
it can act, and will endow that agency with almost
absolute power. The minute division of authority in
governmental organs may therefore be viewed as one
aspect of that political disintegration which inevitably
leads to some form of absolute dictatorship.

The history of the House exhibits two contradictory
tendencies. Following the impube of democracy, ac-
cording to which every member should share as far as
possible in power, the business of the House was grad-
ually dispersed more and more among an increasing
number of committees. But from the anarchy thus
resulting no escape seemed possible, except through
the creation of a highly centralized authority. Even in
1885, when a large part of the work of the Committee
on Appropriations was distributed among a number
of minor committees, Blaine and Randall, as speak-
ers, had already made use of ^ to appoint

committees and to recognize members with the distinct
purpose of controlling legislative action. Carlisle,
too, was soon to follow a policy of even more distinct
leadership in legislative matters.^ Mr. Reed com-
pleted the work of his eminent predecessors, and gave
the House an organization which invested the major-
ity with power to act at any time, but which was also
the climax of centralized authority and caused the

In 1887, he refused to recognize any member desiring
to bring up a bill for the repeal of certain internal revenue
taxei. .

41

AMERICAN LEGISLATURES

repression of tlie individual member into a very nar-
row sphere. Experience had shown that such a close
hierarchy of leadership was necessary to prevent a
state of affairs where irresponsible discussion would
mate responsible action impossible, since the right of
disciisMon was constantly used by individual interests
for purely dilatory purposes.

It is difficult to dissociate Mr. Reed’s rulings from
the influence of his powerful personality. He was
one of those rare men whose constant command of the
situation and whose analytical foresight enable them
to turn the smallest incident to advantage in develop-
ing their power. His action was always constructive,
never haphazard. He foresaw the potentialities of
new rules and the exact scope of their action; and
when he had established them, he constantly admin-
istered them in such a manner that they yielded a
permanent increase to the po'wer of the Speakership.
His power, however, rested not so much upon the
new rules which he established, as upon the
harmony and consistency which he worked out
between these and the older rules which he
had inherited from his predecessors, thus cre-
ating a coherent system which at all points sup-
ported the supremacy of the speaker. Nor were the
specific changes which he introduced, as is often al-
leged, entirely revolutionary, and the product of his
own constructive imagination. For though bold in
independent action, he also had the extreme caution
of statesmanship, and in adopting innovations he
confined himself to those which were clearly neces-
sary to complete the organic evolution of an effective
political leadership of the House.

42

THE HOUSE OF EEPRE SENT ATI VES

The practice of counting a quorum was indeed con-
trary to the more recent precedents in the House.
But Mr. Reed argued that as the presence of a quorum
had often been tacitly assumed when fewer than a
quorum had voted, it would be permissible openly to
ascertain the presence of a quorum when a less num-
ber had voted and thus to establish the validity of the
action.^ Mr. Reed’s ruling in this matter was sup-
ported also by general parliamentary law, and by
the practice of many state legislatiares.^ Lieutenant-
Governor Hill, of New York, had put the matter in
the following convincing language: ^Mf a senator is
in fact present, his refusal to vote, which is a viola-
tion of his duty, does not make him absent in a
parliamentary sense. ’ ’ The House of Representatives
itself had some earlier precedents favorable to Mr.
Reed’s position. The legal correctness of his ruling
could of course not be doubted after his decision had
been sustained by the House, and subsequently by
the courts.® Nor can his act be called essentially

^ See ruling in Hinds, ‘‘Parliamentary Precedents/' sec, 242.

Massacliusetts, New York, and Tennessee. In Penn-
sylvania, constructive absence was reduced to an absurdity by
a member of the minority, who happened to be in the chair,
deciding that he himself was not present. Thomas B. Eeed,
“The Limitations of the Speakership,'’ N. Am. Eev., 150:388.

®U. S. V. Ballin, 144 U. S., 1. “The Constitution has pre-
scribed no method of making this determination, and it is
therefore within the competency of the House to prescribe any
method which shall be reasonably certain to ascertain the fact.
It may prescribe answer to roll-call as the only method of
determination 5 or require the passage of members between
tellers and their count as the sole test, or the count of the
speaker, or the clerk, and an announcement from the desk of
the names of those present. ' '

43

AMERICAN LEGISLATURES

revolutionary, because it was part of a general organic
movement towards the constitution of a highly effi-
cient, centralized authority in the House.

Mr. Reed’s ruling through which he excluded dila-
tory motions was based upon certain precedents in the
House of Representatives itself, although he exercised
the power more frequently and with greater rigor
than any previous speaker. These rulings were avow-
edly designed to make majority action possible, and
to prevent inordinate delay. But since the majority,
as a matter of fact, could act only through the speaker
and the other leaders of the hierarchy, the addition
of these rules brought a great accession of authority
to the speaker. Mr. Reed also used all the other
powers developed by his predecessors with great ef-
fect, such as the appointment of committees, the con-
trol exercised through the Committee on Rules, and
the power of recognition.^ All these powers were
used with the distinct aim of impressing the speaker's
legislative policy upon the House, and of preventing
action on measures which to him appeared unwise or
unnecessary.

Thus it has come about that the majority itself is
bound by the rules designed to make its action possi-
ble. The House acts through its leaders. Independ-
ently of them the individual members can accomplish
next to nothing. Nor does the House exercise a direct
influence over the deliberations of its committees. Thus
in 1898, it was ruled that a motion directing a commit-
tee to report upon a certain matter was out of order.*

He refused to recognize any one desiring to bring up a
free silver bill.

®Hinds, ^‘Parliameiitary Precedents, ^ ^ sec. 698 .

M '

THE HOUSE OF REPRESENTATIVES

The powers of the leaders have been greatly aug-
mented through the development of the Committee
on Rules. This body was at first comparatively unim-
portant, being a select committee appointed for the
purpose of reporting on the rules at the beginning of
each Congress. But in 1880, it became a standing
committee, and then gradually extended its functions
so as to embrace not only the making but also the
suspension and the administration of rules. In 1891,
it was granted the right to report at any time, and
two years later was given the unique privilege of
meeting even during the sessions of the House. In
the latter year, too, the important ruling was made
that the committee might report a special order even
though not specially referred to it. The question
whether a resolution^ reported by the Committee on
Rules is to be considered by the House will not be put
by the speaker, on the ground that, as such resolution
itself proposes the consideration of a bill, there would
be an unnecessary doubling of motions, were the above
questions allowed to be raised.^ The reports of this
committee are therefore peculiarly protected against
dilatory tactics. The Committee on Rules may go so
far as to propose for consideration a measure not yet
reported by the committee to which it had been re-
ferred, so that in effect a committee may thus be dis-
charged from a matter pending before it.®

The essence of the power of the Committee on Rules
lies in the fact that it has the right to report at any
time a resolution that a bill or other measure be made

^Relating to the order of business.

^See Hinds, ‘‘Parliamentary Precedents,’’ secs. 831-2.

^Hinds, “Parliamentary Precedents,” sec. 1042.

45

AMERICAK LEGISLATURES

a special order for a certain day. As nearly all the
important measures before tbe House of Representa-
tives are dealt with under special orders, the Com-
mittee on Rules has therefore in its hands practically
the complete control of the course of business in the
House. It determines what measures shall be dis-
cussed, hov/ much time is to be given to them, and in
what order they are to be brought up. The resolu-
tions reported by the Committee on Rules are of
course ineffective unless adopted by the House, but
as the majority in the House can act only through its
leaders, such resolutions are ordinarily adopted as a
matter of course. This powerful committee, how-
ever, is only an appendage to the speakership, and its
prominence is due to the fact that the speaker himself
is a member of it. When, through the dispersive
tendencies already noted, the business of Congress
had become more and more broken up and divided
among an increasing number of committees, concen-
tration became necessary; and it is but natural that
the committee of which the speaker was a member
and whose functions were not confined to any particu-
lar class of business, but dealt with the general rules
of the House, should draw to itself the power of con-
trolling the temporary modification of such rules,
and thereby of controlling the congressional business
itself.

Considering the great power of the Committee on
Rules and the fact that it is but a satellite to the
speakership, it is believed by many that its develop-
ment represents too great a centralization of author-
ity. Suggestions have therefore repeatedly been

46

THE HOUSE OF REPRESENTATIVES

made for a modification of its structure. It has been
urged that the election of the committee hy the House
itself would insure greater individuality on the part
of the members elected, so that they would be likely
to represent more fairly the different groupings of
opinions and interests in the House. Such an attempt
to substitute an aristocracy for a dictatorship would
at first sight seem to promise well for the dignity and
efficiency of the House. It can scarcely be claimed
that the members whom the speakers have associated
with themselves on this committee from time to time,
have always or even generally been men of broad and
representative statesmanship; and if the committee
could be transformed into some resemblance to the
British Cabinet, a representative council of the ablest
leaders of the House, the latter body would undoubt-
edly gain much in self-respect and real influence. It
is however questionable whether such a result could
be gained through the method of election. Under the
present system the members of the committee are
selected by the speaker in accordance with the general
principle of leadership in the House, that is, less on
account of striking ability and mastery of public
questions than because of long-continued experience
in the technique of House and committee procedure.
The selection is indeed far from being governed by
caprice or by a mere desire of obtaining willing in-
struments for the speaker’s purpose, although of
course he is not likely to select men violently opposed
to him in political views. If the matter were to be
decided through action by the House, the House would
either have to follow the system now in vogue, which

47

AMERICAN LEGISLATURES

is largely one of seniority promotion ; or it would Rave
to exercise the very difficult function of selecting from
among the younger men those who could, without
having been throughly tried, He trusted with leader-
ship in the intricate business of legislation. The mere
statement of the alternative is sufficient to indicate
how unsafe it would be to make confident predictions
as to the result to be expected from a change in the
method of selection. Another part of the committee
for reform contemplates the increase of the committee
so that it should contain at least five members of the
majority. This would clearly make the committee
more representative, and it would also enable the
speaker to utilize the services of men of great ability
who have not yet served long enough in the House to
secure the patent of leadership under present condi-
tions. The most serious objection to the suggestion
lies in the fact that the functions of the committee
are such as require quick and decisive action. The
diffusion of business in the House calls for a heroic
remedy, and the time does not yet seem ripe for the
substitution of a larger and more representative body
in the place of the two majority members who now
act virtually as lieutenants of the speaker.

Let us now consider the most recent development
of practice and procedure in the House of Repre-
sentatives. When Mr. Reed returned to the speakership
in 1895, the use which he had made of his power dur-
ing his earlier term of office had practically been jus-
tified by his political opponents who had so violently
criticized his conduct at that time. Themselves in

48

THE HOUSE OF EEPRESBNTATIVES

power as the majority in the House, they had been
forced to recognize that the transaction of business
required an intense concentration bf authority in the
hands of the speaker and of the Committee on Rules.
On account of the political prominence which their
strenuous opposition had given to the rule of the
Fifty-first Congress that no dilatory motion shall he
entertained by the speaker, they did not consider it
advisable to re-enact this rule during the two Demo-
cratic terms. But filibustering was so rampant, and
the efiScient action of the House of Representatives
was so seriously impeded by obstructionists, that the
leaders of the Democratic party tacitly recognized
the justification of this rule and ceased their opposi-
tion to it when it was re-introduced by the Republi-
cans in the Fifty-fourth Congress. The rule respect-
ing the quorum was continued in the Fifty-second
Congress in a modified form, maintaining its princi-
ple, but having the count made by tellers from both
parties,— a merely formal change. Mr. Reed, there-
fore, returned to the speakership with a great acces-
sion of influence, and when two years later his party
was completely successful at the polls in the presi-
dential election, he reached the zenith of his career
as a great party leader. The extent of his authority
is apparent from his action during the short session
of 1897.^ The extra session had been called for the

Nation’^ of March 8, 1897, expresses the growing
consciousness of the speaker’s power, in the following words:

^ ^ The speaker ’s control over legislation is now, under the
rules and practices of the House, almost absolute. . . . The

^ 49

AMERICAN LEGISLATURES

purpose of revising the tariff. The Dingley hill, pre-
pared in anticipation of the extra session, a highly
important measure which affected every industrial
pursuit in the country, was introduced and forced
through the House within two weeks. Only the most
superficial discussion was had and the measure yvbb
sent to the Senate, where, as is usually the case, it was
subjected to careful scrutiny and a large amount of
modification. Speaker Reed had not appointed the
standing committees of the House at the beginning of
the session, and during ail the months when the Bing-
ley bill was being dissected in the Senate he kept the
House unorganized for business, and, holding the
whip-hand over it, allowed no important action what-
ever to be taken. The delay in committee appoint-
ments secured for him the absolute mastery of the
situation. He prevented the House from voting on
the Cuban Belligerency resolution of the Senate as
well as on the Nicaragua Canal bill, although it is
very probable that these measures would have been
passed by large majorities, as the clamor for their
consideration was great and pertinacious. But the
members of the House did not dare to brave the
speaker at this time, for so long as the committees had
not yet been appointed the power of punishment and
reward was still in his hands. Had Reed merely been

people know this now. The time has passed when the speaker
could exercise his vast power unsuspected. Nor can he shirk
his responsibility. No bill can pass the House without his
passive approval, and that in effect is the same thing as active
advocacy. It is Speaker Reed more than any other man or set
of men who will give us our new tariff. ’ '

50

THE HOUSE OF REPRESENT ATI YES

a leader of the House, a successful revolt might have
been organized against him at this time, but he was
also a leader of his party. His political character and
the policies for which he stood had been vindicated
and he seemed resistless, second in power to none with
the possible exception of the President. When it was
attempted to test the feeling of the House by moving
a resolution calling upon the speaker to appoint the
committees, he was supported not only by the solid
phalanx of his own party, but even by more than
one-half of the members of the minority. It was only
at the end of the session, on July 24, when the Dingley
bill had become a law, and when the measures objec-
tionable to the speaker had been abandoned, that the
make-up of the committees was finally announced. It
is true that in this matter Mr. Reed could appeal to
the precedent established by Colfax and Blaine, in
the sessions of 1867 and 1871. The situation at those
times was, however, very different, and the delay in
committee appointment did not imply such over-
shadowing power on the part of the speaker.

In the year after this great display of paidia-
mentary authority, the House, as it does at times,
broke away from the strict control of the speaker.
Reed himself seemed to hold the reins somewhat
laxer. He had no such definite policy to establish as
in 1897 ; moreover, the demoralizing influence which
war always exercises on political action, seems to have
affected the House, making it less inclined to regular
discipline. The House refused to follow the views
of the speaker on the question of Cuban belligerency,
the fifty million war appropriation, and the ultimatum

51

AMERICAN LEGISLATURES

to Spain. In the matter of the annexation of Hawaii
the speaker fonnd himself in a feeble minority and
left the chair when the vote on the resolution came
np. This action of the House shows that in a time of
unusual excitement it will not follow the leadership
of a speaker who desires to put a curb on its zeal for
action. When such passions come into play, a speaker
who does not desire to ride the whirlwind is at a dis-
advantage; the normal control is destroyed and for a
time unrestrained impulse reigns supreme. Com-
pared with the British prime minister, the speaker is
at a disadvantage, because, when he does lose control
of the House, it is not open to him to appeal to the
i electorate at large.

The election of Speaker Henderson in 1899, which
was uncontested, is of great importance as indicating
the hold which the hierarchical principle had obtained
in the House. Mr. Henderson had served as a con-
gressman for twenty years, and had been a member
of the Committees on Judiciary and on Rules. He
was helped somewhat also by sectional considerations,
for there had been no Western speaker since Mr.
Keifer, and Henderson had the added distinction of
being the first speaker to be chosen from the states
beyond the Mississippi. But the determining influ-
ence after all was to be found in his long service, and
in his identification with the new power of the speaker
and of the Committee on Rules. To succeed Mr. Reed
was not an easy matter, the instrument which he had
forged could be wielded only by a man of high ability
and power. But the regime of Mr. Henderson was
unnecessarily weak, especially as far as the relations
■ 52

THE HOUSE OF REPRESENTATIVES

of the House to the Senate were concerned. His in-
cumbency of office, however, marks another point in
the' advance of the power of the Committee on Rules.
On February 27, 1902, the committee reported that
the pending bill for the repeal of the Spanish War
taxes should be voted on without amendment. This
was done in order to shut out such measures as a bill
for the removal of duties on steel and iron, which had
an excellent chance of passing as an amendment to
the repeal measure. This precedent shows the extent
of the power of organization in the House. An amend-
ment ought to stand on a higher plane than mere
general criticism in debate, because it ordinarily con-
tains in itself a specific and definite proposal. To
rule out the right of amendment was further to emas-
culate all discussion and to render it purely perfunc-
tory. This was pointed out by the leaders of the
opposition who recorded a strong protest, but passed
over the bill itself in muteness, disdaining to join in
a purely academic discussion.

There were a few other interesting eases of the use
of centralized authority in the House during the
Henderson r%ime. Near the end of the last session
of the Fifty-seventh Congress an extreme use was
made of the power of the speaker to note a quorum
present. In dealing with a St. Louis election case,
Mr. DalzeU, occupying the chair, amid the protests
of the minority, considered as present men who, it is
claimed, were not even in the building. A g ai n, in
response to the dilatory tactics and filibustering on
the part of the minority, on February 27, 1903, the fol-
lowing rule was adopted: “That it shall be in order

53

AMERICAN LEGISLATURES

to take from tlie speaker's table any general appro-
priation bill returned with the Senate amendments,
and such amendments having been read, the question
shall at once be taken without debate or intervening
motion on the following question: ‘Will the House
disagree to said amendments en bloc and ask a con-
ference with the Senator And if this motion shall
be decided in the affirmative, the speaker shall at once
appoint the conferees, without the intervention of
any motion.’’

But in 1902, on the question of reciprocity with
Cuba, the House organization sustained a serions re-
verse. In Committee of the Whole, on April 18, after
a spirited discussion, an amendment was introduced
repealing the differential on sugar. Mr. Sherman,
as chairman, ruled that the amendment was not ger-
mane, giving his reasons at length. By a coalition of
the Democrats and the beet-sugar group of Republi-
cans, the decision of the chair was overruled by a
vote of 171 to 130. A state of pandemonium fol-
lowed, while the opposition celebrated its victory by
prolonged cheering. A few minutes later, on a not
dissimilar amendment repealing the differential on
hides, the chair repeated his previous ruling and it
was this time upheld by a vote of 183 to 70. Later in
the day when the hill came before the House, the
coalition victoriously added its sugar differential
amendment to the bill by a vote of 199 to 105. In
the minority on this question were such prominent
leaders as Messrs. Cannon, Dalzell, Grosvenor, Bayne,
and Hemenway.

The election of Mr. Cannon was predetermined as
54

THE HOUSE OF REPRESENT ATIYES

mncli as that of Mr. Henderson had been. . He had
even a longer service to his credit, having been in
regular attendance for thirty years, and having from
the obscurity of an ordinary rural member worked
his way into a position of leadership, through native
shrewdness and diligent attention to the business of
the House. Mr. Cannon was elected as a protagonist
against the undue pretensions of the Senate. He had
repeatedly expressed his impatience with the methods
of the other house. Upon his election he immediately
took up the cudgel against senatorial encroachment,
the success of which efforts we shall consider in a
later chapter. During the Fifty-eighth Congress, the
House at times became very unruly. In 1905, the
organization was voted down twice. But while his
followers had thus departed from the strict dictates
of party discipline, it must be confessed that Mr.
Cannon had made a precedent for such a breaking of
party ties and disregard for party responsibilities,
by appealing to Democrats to assist him in passing
the navy appropriation bill, when a deficiency of
Republican votes threatened that measure. The
further breaking down of party differences during
the first session of the Fifty-ninth Congress, when an
important measure like the railway rate bill was
passed with only seven dissenting votes, had the effect
of making the resistance to the speaker’s authority
more general and better organized than it had ever been
since the speakership had developed its great author-
ity. The revolt against the speaker’s policy in the
matter of the statehood bill and of the Philippine
tariff, became at times so formidable that it was

55

AMERICAN LEGISLATURES

feared that the House organization might be over-
thrown by a coalition between the 'insurgents’^ and
Democratic members* It is indeed evident that as
far as positive powers are concerned, new accessions
of authority could scarcely be obtained by the speaker.
The work to be done at the present time, if the posi-
tion of the speakership is to retain its influence, is a
more careful adjustment of the existing machinery to
the needs of the House and to the susceptibilities of
its members.

In 1906, the chairman of the Appropriations Com-
mittee inaugurated a practice which tends in a meas-
ure to restore the control over all appropriations for-
merly exercised by this committee, and which, if
successfully carried out, will constitute another im-
portant step toward centralization. He assigned
one member of his committee to watch the appropria-
tion bills reported from each of the various com-
mittees in charge of special appropriation bills. One
member was set to watch the army appropriation bill,
another the post-office bill, etc. Should any items
appear which under the rules were inadmissible and
to which objection could be made on reasonable
grounds, the member on guard was to have them
stricken out on a point of order. It is evident that
the budgetary confusion in the House might be to a
certain extent remedied by this simple and eifective
device. But as might have been anticipated, the mem-
bers of the House did not take very kindly to this
innovation. When Mr. Tawney’s committee reported
the legislative, executive, and judiciary appropriation
bill, the resentment against the committee and its

56

THE HOUSE OF EEPRE SENT ATI VES

leaders expressed itself in an unmistakable manner. As
soon as tbe first sections of this measure came before
the House in Committee of the Whole, objections were
made to individual items on the ground that there
was no previous legislation justifying such appro-
priations. It is a well known rule of the House that
the general appropriation bills are not to contain any
new legislation or any appropriation which is not
provided for by previous legislation. It was the rule
invoked by Mr. Tawney’s lieutenants against the
measures brought in by other committees, which
was now used against his own bill by other mem-
bers of the House. Item after item was objected
to, and as these objections had to be upheld by
the chairman, under the rules of the House, a great
many sections were stricken out and the entire plan
of the Committee on Appropriations was destroyed.
The leaders of the committee pleaded in vain against
an unreasonable use of the power of raising points
of order. The dissatisfied members simply argued
that if it was right for the leaders at their convenience
to use points of order against the minor committees,
individual members could with equal right make use
of this instrument even against a strong and favored
committee. But the Committee on Appropriations was
not yet at the end of its resources, and the result was
that the Committee on Rules, on March 28, reported
a resolution which perhaps marks the greatest extent
to which the power of leadership in the House has
ever gone. The resolution provided in substance that
no further points of order should be allowed to inter-
vene against the consideration of any section of the

57 ' ' \ ,

AMERICAN LEGISLATURES

legislative, executive and judicial appropriation bill,
except a section relating to superannuation. It was
further provided that it should be in order to insert
any provision of the bill which had heretofore been
ruled out on a point of order. In supporting this
resolution, Mr. Dalzell said that the laws fixing the
number of government employees were in most eases
old laws. With the increasing needs of the depart-
ments, items had from year to year been put into the
appropriation bill, which were not actually sanctioned
by existing law. This condition v/as really the fault
of the various committees which had not reported the
necessary legislation for improvements in the civil
service. This defense shows clearly the cumbersome-
ness of the entire system of financial legislation. In
order to live up to the rules of the House, it would be
necessary for some twenty or thirty committees to act,
before a legal basis for an adequate general appro-
priation bill could be laid. But only if they should act
in harmony would such a result be possible. Who
then is to elaborate the plan which wnuld govern all
these committees in their recommendations ? Who is
to look after the various committees and see that they
actually bring in the legislation necessary for the com-
plete realization of the plan? The very cumbersome-
ness of this machinery has for years driven the Com-
mittee on Appropriations to do what, under the rules
of the House, was illegal, but what, from the point
of view of the needs of the government, was absolutely
necessary. The House conscious of this necessity had
tacitly agreed to this continued evasion of the rules,
and it was only when the Committee on Appropria-

58

THE HOUSE OF REPRESENTATIVES

tions tried to take a new step in the direction of cen-
tralization, that opposition was aroused. The oppo-
sition to the resolution reported by the Committee on
Rules was naturally very strong. It was pointed out
that this was the most radical measure ever proposed
by the committee ; that there was no reason why one
committee should be thus favored by having its bills
freed from the impediments of points of order. It
was further pointed out that this was a very dan-
gerous precedent, in that, as one hundred members
constitute a quorum in the Committee on the Whole,
fifty-one members might enact all sorts of legislation
unhindered by points of order based on the rules of
the House. Under this method of procedure it would
be possible to keep in the bill indefensible favors for
some of the members of the House and their proteges.
But notwithstanding all this opposition the resolution
was passed, and the bill was thus freed from all
further interference by points of order.^

When we consider the rigorous discipline ordinarily
enforced by the speaker, we are led to inquire into the
rationale of the submission of the House. What is
the reason which compels its members to extinguish
themselves so utterly, to give up every opportunity
of making their individuality felt, and of subordinat-
ing themselves, their wishes, and their action entirely
to the direction of a few leaders and of the speaker*?
It is certainly not by choice that the average member
submits to such a system. It must, therefore, be the
logic of circumstances that has rendered this neces-

^For this very interesting discussion, see ^^Congressional
Record, Fifty-ninth Congress, 1st Sess., p. 4507 et seq,

59

AMERICAN LEG-ISLATURES

sary. We have already seen that majority rule and
the orderly transaction of business could not go on
without a strict method of concentration. But there
is less opposition and less effort to break away from
the constituted authority than we should expect, and
the machinery works ordinarily with great smooth-
ness. Of primary importance, in accounting for this
state of affairs, is the fact that the leaders of the
House in order to make their leadership effective are
virtually bound to support the centralized authority
of the speaker. The men who, through experience and
tact, have acquired positions as chairmen of the im-
portant committees, know that their opportunity to
make their influence felt depends upon a strong
speakership. This alone will secure that orderly pro-
cedure which will enable them to get the proper share
of the time of the House for the transaction of the
business which has been committed to their charge.
Their influence stands and falls with that of the
speaker. Should the House become anarchical, they
would have to struggle for a hearing with the ordi-
nary member on the floor and the advantage of a
position gained by long experience and diligent ser-
vice would he lost.^ The speaker will place on the
prominent committees those men whom he considers
the strongest, the most able to gain a following in the

March 23, 1906, Mr. Payne said: ^‘Gentlemen declaim
against the rules of the House, and they want a sort of town-
meeting, where every one of 386 members, clamoring for recog-
nition of the speaker, shall receive recognition at the same
time to make his motion or to make his speech. They want
pandemoninin,

60

THE HOUSE OF EEPBESEJSTTATIVES

House and to deal eJffectively witli some particular
business. These men to a eertain extent remain de-
pendent upon him, and he is thus assured of the as-
sistance of the strongest men in the House, who are
personally interested in supporting the predominance
of the hierarchy. Who then is there to lead and carry
out a successful revolt ? Suppose fifty or one hundred
of the newer members led by younger men of ability
should attempt to do so. They must brave the entire]
constituted authority, 'Hhe organization’’ of thej
House. They will not even be recognized to speat
except at the sufferance of those in power. Every
member knows that by revolting he endangers his
influence. He loses whatever opportunity he may
have for obtaining legislative favors for his constitu-
ents. He hazards the possibility of his own prefer-
ment, and moreover he runs the risk of being looked
upon as a traitor to his party. The success of such a
movement in ordinary times is almost unthinkable.
Only when the whole House is carried away by some
powerful excitement, is the speaker’s authority in
danger. On the other hand, this situation of apparent
autocracy does not permit the speaker to become en-
tirely capricious and arbitrary in his rulings. A cer-
tain reciprocity of influence exists between him and
the other leaders of the House. He must tactfully
arrange to satisfy the heads of prominent committees
and the leaders of powerful groups within the House.
He cannot carry out an entirely personal and narrow
policy, relying solely upon his unsupported authority.
But while the leaders will always be consulted, the
ordinary member is powefless; and in cases where
61

AMERICAN LEGISLATURES

tile speaker, pursuing a broad and definite policy,
uses the advantages of his position tactfully, he can
even coerce unwilling leaders to accept his plans. It
is thus the logic of institutions and of political action,
not the voluntary choice of any member or majority
of members, that has imposed this authority upon
Congress and upon the Nation. When Mr. Reed
boldly carried out his authority to the ultimate limits,
he was the most berated man in the country. Had the
question of his assumed power been submitted to a
popular vote, he should undoubtedly have been de-
feated by an enormous majority; and yet the force
of circumstances proved stronger than the likes and
dislikes of the public, and an authority decidedly un-
popular in its beginning is now accepted almost as a
matter of coursed

Among the pronounced tendencies of development
in the House of Representatives, none is more im-
portant than that of an organic growth in the matter
of the selection of leaders. A sudden rise to promi-
nence and power through brilliant gifts of oratory
and debate is unknown in the modern House. The
highest rewards are not won by commanding ability
or the sustained power of farseeing statesmanship,
but rather through shrewdness, tact, industry, and
experience. Men who continue in membership ses-
sion after session, who avoid mistakes, who master
the intricate mechanism of committee and House pro-
cedure, are almost certain to arrive at a position of

^Eor a violent indictment of the system, see Mr, Moon^s
speech, ^^Congressional Record/^ Fifty-ninth Congress, 1st
Sess., p. 4899.

62

THE HOUSE OF BEPEE SENT ATI VES

prominence in the end. All the men who have occu-
pied the seats of power in the House during the last
few decades have seen long service.^ The character
of the work of the House is such that it requires
moderation, tact, and diligent attention to detail,
rather than more striking abilities. The House is
not quick to discover and reward great promise in its
younger members. This is one of the respects in
which the House of Eepresentatives differs most from
the House of Commons. Although the meteoric ad-
vance of Pitt the Younger is an extreme instance,
men rise to prominence and their ability wins ac-
knowledgment much faster in the British Parlia-
ment than in Congress. The position of prime
minister and the Cabinet offices, indeed, are reserved
to men who combine masterly ability with long expe-
rience in public affairs. But the parliamentary under-
secretaryships, which also afford much opportunity
of gaining the attention of the public, are generally
filled by younger men of exceptional promise. The
cardinal difference, however, lies in the fact that the
ablest men of the House of Commons do not look
beyond it for the fulfilment of their highest ambi-
tions of public service. Leadership of the House
constitutes the highest political honor in Great Brit-
ain ; whereas the abler members of the House of Eep-

^ The years of service in the House (including the Fifty-
ninth Congress) are as follows: Bandall served 28 years,
Blaine 13 years, Carlisle 14, Eeed 24, Crisp, 13, Holman 32,
Cannon 32, McKinley 12, Hepburn 20, Bingley 18, Payne 24,
Tawney 14, Dalzell 20, Eichardson 22, Eoger Q, Mills 10, Be
Armond 16, J. S. Williams 14.

63

AMERICAN LEGISLATURES

resentatives are rather disposed to look to the Senate
for the enlmination of their careers. The hierarchy
in the House keeps a firm hand on the reins of power,
and permits no one to break into the charmed circle
through mere ability. Nor do the rewards of long
service in the House equal in attractiveness the oppor-
tunities of a senatorial career. It is a remarkable
fact that few of the older leaders of the House go to
the Senate. In general men go from the more popular
to the more select chamber after a comparatively short
service in the former.^ The fact that many of the
ablest men in the House are drawn off after a com-
paratively short service, to enter the other chamber,
has a strong influence upon the relations of the two
houses. For this reason alone, the opposition of the
House to the Senate is less real than that of an elective
to a hereditary chamber. We could no-t expect sincere
enthusiasm in a contest against the prerogatives of a
senate, which most of the members of the House
are secretly or openly hoping to enter at some time.
It is rather the older leaders, who derive considerable
political importance from their position in the House,
who are the most ardent champions of its rights;—
men like Mr. Cannon, to whom the House has given

^ There are of course exceptions to the rule. Eoger Q. Mills
entered the Senate after 19 years of service in the House ;
Carlisle and Blaine passed from the speakership to the Senate.
Hopkins served 18, Burrows 16, years. But the average is
much shorter. Dolliver served 11 years in the House ; Bailey,
Newlands and Hemenway 10; Dick and Long 7 ; Lodge, Bur-
kett, Stone, La Eollette and Rayner 6; Gallinger, Mallory and
Carmack 4; Daniel, Ball, Patterson and Brandegee 2; and
Sullivan of Mississippi only one year.

64

THE HOUSE OF REPRESENTATIVES

prominence, and who have passed beyond the period
when senatorial ambitions stir them very strongly.

The importance accorded to experience in the busi-
ness of the House makes appointments to prominent
eommittee positions largely a matter of seniority. It
is exceedingly nnnsual to promote a younger man on
a committee over the heads of associates of longer
service. Occasionally a strong man is taken from
without and placed at the head of a committee.^ This
practice of seniority promotion, together with the fact
that the services of clerks of important committees are
usually retained for a long time, gives the House that
conservative and expert element which it sometimes

^ B.g. Mr. Overstreet was appointed chairman of the Committee
on Post-offices and Post-roads in 1903, giving him precedence
over two men who had served sixteen and thirt 7 -two years re-
spectively. The latter were consoled by appointment to tinim-
portant chairmanships. In 1905 the selection of a chairman
for the Committee on Appropriations created considerable in-
terest. There were members on the committee who had served
fourteen and twenty-six years respectively in the House. The
choice finally fell on a member (Mr, Tawney) who had acted
in the capacity of a ^^whip,’' responsible for keeping the
members of the party in line and bringing out the full voting
strength on critical occasions. This function, formerly un-
known in the House, has been developed as a part of the closer
organization. It is significant to note that in Congress a mem-
ber who performed this useful service has been promoted to
the headship of a most important committee, and has thus be-
come one of the fioor leaders j whereas in England men who have
served the House of Commons in this capacity have never
taken a prominent part in parliamentary discussion, but axe
usually rewarded for their services by a peerage. The dif-
ference indicates the importance of machinery and organiza-
tion in the House of Representatives.

65

s

AMERICAN LEGISLATURES

lacked in the earlier periods of its history. In order
to become a leader in the House, a member must be
able to retain his seat a long time. Either political
conditions must be fa^mrable to such permanency of
tenure, as it is in some of the Southern and smaller
Eastern states ; or the member must be a shrewd poli-
tician who knows how to adjust himself to the shifting
currents of politics, and to keep his constituents in
good humor through political favors judiciously dis-
tributed. A mistake in the filling of a postmastershix^
may rob the House of a leader whose usefulness in
legislative action is beyond doubt. It is beginning to
be recognized by the public that his constituents may
materially assist their representative in gaming a
position of influence, by retaining the same man in
office for a long time. This matter is strikingly illus-
trated by a comparison of the committee appoint-
ments in the Fifty-fourth and the Fifty-eighth Con-
gresses. In the Fifty-fourth, the following states had
the largest number of chairmanships : New York ten,
Pennsylvania nine, Massachusetts six, Iowa six, Illi-
nois five, Maine four. In the Fifty-eighth Congress :
Ohio eight, New York seven, Illinois seven, Wisconsin
six, Pennsylvania five, Indiana, Iowa and New Jersey
four each. Maine, which in the former Congress was
represented by Reed, Dingley, Milliken, and Boutelle,
none of whom had served less than seven terms, in
the Fifty-eighth had no chairmanship at all, her oldest
representative being in his fourth term. On the other
hand Wisconsin, which had only one chairmanship in
the Fifty-fourth, at which time nearly all its members
were new, in 1903 received six chairmanships, which

66

THE HOUSE OF REPRESENT ATI YES

went to men who had served from eight to twelve
years. The prominence of Ohio in this respect was
due to the same cause.

The main consideration, after all, is the effect which
the development of this system of hierarchical leader-
ship and of centralized power has on the character
of legislation in the House. It must be confessed
that it is by no means clear whether the quality of
work performed ' has been much improved by the
mechanism so artfully devised. Mr. Reed turned the
House into an instrument which he could use for the
development of statesmanlike policies. But the sys-
tem could not fail to a large extent to destroy the
self-respect of the House, and to make the average
member lose what little of responsibility he still felt
for the result of legislation. On account of the
stringency of the rules and the power of the leaders
to arrange the business of the House, debates have
become very perfunctory. It is rarely that the merits
of a measure are debated at ail carefully on the floor
of the House. A debate in, the House assumes the
character of shrewd fencing for position, of raising
and combating points of order, of explaining tech-
nical matters, rather than of a discussion of the prin-
ciples underlying a measure and their application to
the facts under consideration. A sharp person'al tilt
will attract the attention of the House, which is al-
ways a grateful listener to sarcasm and witticism.
It will also give heed to declarations of policy which
may occasionally be made by chairmen of important
committees. But the actual subject-matter of legis-
lation receives but scant attention, and it is extremely

67

AMERICAN LEGISLATURES

rare for members to engage in an adequate exposition
of the bearing of a particular measure. In closing the
discussion on the railway rate bill in 1906, the chair-
man of the Committee on Inter-state Commerce spent
most of his time in sarcastic references to another
member, while really important matters pointed out
in questions from the floor were slurred over or
evaded.^ If a committee chairman entertains the
House, avoids committing himself on doubtful points,
and keeps his opponents from gaining any tactical
advantages, he may be well satisfied. He does not
expect to convince anyone, nor does he talk to an
audience beyond his immediate hearers. What is to
be done in the way of legislation having already been
decided by the leaders, it is for the chairman to avoid
arousing unnecessary antagonism or placing his side
in a position where it may be criticized on the floor
of the House. The party in opposition is so manacled
that it contents itself with brief protests. So, unless
violent differences of opinion exist in the majority
party itself, as was the case in respect to the Cuban
reciprocity bill in 1902, there is no real debate in-
volving the principles of legislation. In 1901, the
Cuba and “Philippine amendments to the army bill
were put through in an hour’s debate; the discussion
of the statehood bill in 1905 occupied forty minutes.
Nor can it be said that the leaders have used their
great power for the purpose of allowing only mature
and well-considered measures to pass. The Dingley
tariff was rushed through the House, but the Senate

^ See ' * CoBgressional Record, ’ t Eif ty-nmth Cosgress, 1st
Sess., p. 2468 seg.

68

THE HOUSE OF REPEESENTATIVBS

took occasion to add eigkt kundred and seventy-two
amendments. Such measures as the Littlefield anti-
trust bill, and the Bsch-Townsend bill, however just
in their conception, were certainly not sufficiently
matured and well enough considered to carry with
them the hearty support of the majority that passed
them through the House. Measures are often passed
for superficial political effect, for the sake of appear-
ance in order to satisfy popular clamor, perhaps in the
secret hope that the Senate will tone down their
rashness, and give them an acceptable form; or that,
if they are defeated, such defeat can be placed on the
broad shoulders of the Senate.

The House has developed a machine for producing
leaders, but these leaders have not always shown the
qualities of statesmanship. Nor have they been able
to restrain the House in its inordinate desire to appro-
priate the public money. It was one of the greatest
titles of Mr. Eeed to fame that he stood like a wall
between the public treasury and the ravenous hunger
of the House for appropriations. But private pen-
sion bills are more readily passed at the present time,^
and even the large appropriation bills have not been
successfully guarded by the congressional leaders. It
is true of Congress, as Mr. Gillett says: “The great
difficulty is to find the spot where Congress will agree
to economize. Most of the members say they are for
economy, and I believe they are sincere, but when it

^ On one day in January, 1905, 459 bills were passed in
eighteen minutes. In 1899, the river and harbor bill carrying
appropriations amounting to thirty millions was passed after
a debate of ninety minutes.

69

AMERICAJSr LEGISLATURES

comes to applying their principle to any particular
case, there is apt to be some special reason against it,
and so, while favoring economy in the abstract, they
oppose it in practice.’’ So strong is this irresponsible
desire for lavish public expenditure, that Chairman
Hemenway of the Committee on Appropriations, in
1905, pleaded in vain with the House to avoid squan-
dering the public money at a time when the treasury
was facing a deficit of $60,000,000. And yet the
House, when in Committee of the Whole considering
the general appropriation bills, pleases itself in the
display of a petty and niggardly economy, discussing
the smallest items in clerk hire and office expenditure
with all the earnestness of a village council. A dif-
ferent spirit prevails when bills for public buildings,
river and harbor appropriations, etc. (the ^^pork bar-
rel” bills), are before the House.

The long continued predominance of one party has
not been altogether favorable to the position of the
House. It has robbed it of that life and activity
which is created by a strong opposition. It has en-
trenched the hierarchical system without bringing
men of commanding ability into the positions of
leadership. Mr. Reed for a time made the House
important through his own genius. His personal im-
portance transcended his position in the House, which
he used merely for the achievement of his broader
purposes of statesmanship. The House became im-
portant through him, but it lost inner stren^h. It
lost the feeling of dignity and power which had for-
merly upheld it in the struggle with the other cham-
ber. Under Mr. Reed’s successors the inner weak-
ness of the House became more and more apparent.

70

THE HOUSE OE REPEESENTATIVES

How distinctly unfavorable a one-party period
must be to the rights of the House, can be understood
only after considering the relations of the latter with
the Senate. As the Senate is in control of the party
machinery, the representatives of a state are fre-
quently reduced to political vassalage. They must
look for political support to their senators, and their
struggle for the independence and rights of the House
will at best be half-hearted. During periods when the
House represents a different party from that of the
Senate majority, there will be a far more energetic
defense of its rights. The nature of this problem, we
shall more fully consider in our study of the organic
character and the action of the Senate.

C0N6BESSI0NAL PROCEDURE

The procedure in the houses of Congress is regulated
in general by the manual of parliamentary practice
framed by Thomas Jefferson, and more specifically
by the standing rules of each house. The rules of the
House of Representatives, together with the decisions
of the speaker interpreting them, are a complicated
body of parliamentary law.^ We can, in this place,
point out only the general order of business and the
most essential rules with respect to debate. The

^TEe precedents are collected in A. C. Hinds' “Parlia-
mentary Precedents of the House of Eepresentatives, ” Wash-
ington, 1899. Mr. Hinds has for a long time been clerk at the
speaker’s table, and is an anthoritatiFe adviser on matters of
parliamentary procedure.

71

AMERICAN LEGISLATURES

regular order of business in tbe House is fixed as
follows :

1. Prayer by tbe chaplain.

2. Reading and approval of the journal.

3. Correction of refei’ence of public bills.

4. Disposal of business on speaker’s table.

5. Unfinished business.

6. The morning hour for the consideration of bills

called up by committees.

7. Motions to go into Committee of the Whole House

on the state of the Union.

8. Orders of the day.

Business on the speaker’s table includes, among
other matters, messages of the President and Senate
bills. A Senate bill on the speaker’s table can be
called up directly if it is not of such a nature as to
require reference to a committee, or if a substantially
similar bill has already received the approval of a
House committee, or if any committee requests that
it be called up. The expression ‘^morning hour” in
the rule, referred originally to an actual hour of
sixty minutes ; under the present rules, however, the
business of the morning hour may continue for a
longer time unless interrupted at the end of sixty
minutes by a privileged report, or by a motion to go
into Committee of the Whole House on the state of
the Union. The ‘business of the morning hour con-
sists of general bills called up by committees. The
consideration of money hills and of private bills is
almost always had in Committee of the Whole House.
Bills which have been reported back from the eoin-
■■ 72

THE HOUSE OF EEPEESENTATIVES

mittees are placed on one of the three calendars,
namely :

1. The Calendar of the Committee of the Whole
House on the state of the Union (Union Calendar),
to which are referred hills raising revenue, general
appropriation bills, and bills of a public character
directly or indirectly appropriating money or prop-
erty.

2. The House Calendar, to which are referred all
bills of a public character not directly or indirectly
appropriating money or property.

3. The Calendar of the Committee of the Whole
House (Private Calendar), to which are referred all
hills of a private character.

But these calendars constitute merely a record of
the business that is regularly before the House; the
bills are not necessarily, or even frequently, called in
the order in which they appear on the calendar; the
Union Calendar, for instance, has not been called for
more than ten years past.

As stated, after an hour has been devoted to the
consideration of general bills, it is in order to enter-
tain the motion to go into Committee of the Whole
House on the state of the Union, or, when authorized
by a committee, to go into Committee of the Whole
House to consider some particular bill. When no par-
ticular bill is designated, it is understood that revenue
or appropriation bilk will be discussed in Committee
of the Whole. When the committee is to be called
for this latter purpose, a motion to that effect has
precedence over even the business of the morning
hour, and such a motion may even be made on those

73

AMERICAN LEGISLATURES

days which by the rules have been set apart for spe-
cial business. The House, on going into Committee
of the Whole, frequently fixes the time to be devoted
to general discussion. In Committee of the Whole,
one hundred members constitute a quorum.

The regular course of business in the House may at
any time be interrupted by privileged reports which
may be made by certain committees. The committees
entitled to make privileged reports, and the subjects
upon which such reports are allowed, are the follow-
ing: the Committee on Rules, on rules, joint rules,
and order of business ; the Committee on Elections, on
the right of a member to his seat; the Committee on
Ways and Means, on bills raising revenue; the com-
mittees having jurisdiction of appropriations, the
general appropriation bills; the Committee on Rivers
and Harbors, bills for the improvement of rivers and
harbors; the Committee on the Public Lands, bills
for the forfeiture of land grants to railroads and
other corporations, bills preventing speculation in the
public lands, and bills for the reservation of the
public lands for the benefit of actual and hona -fide
settlers; the Committee on Territories, bills for the
admission of new states; the Committee on Enrolled
Bills, enrolled bills; the Committee on Invalid Pen-
sions, general pension bills ; the Committee on Print-
ing, on all matters referred to them of printing for
the use of the House or the two houses ; and the Com-
mittee on Accounts, on all matters of expenditure of
the contingent fund of the House. Reports of con-
ference committees are highly privileged by always
being in order, except when the journal is being read,

74

THE HOUSE OF REPRESENTATIVES

when the roll is being called, or the House is taking a
vote. A conference report may be made in interrup-
tion of a member who is occupying the floor for debate,
or during the time set apart for a special order.
Other privileged reports do not take precedence over
a special order. The manner in which the reports
from the Committee on Rules are protected has al-
ready been considered.

On account of the pressure of general business it
is common to assure important bills sufficient and
speedy consideration by making them a special order
for a certain day. As this procedure, however, con-
stitutes a change in the established order of business,
it amounts to a change in the rules, and can be adopted
only in the manner prescribed for such action. For
this reason the order of business is largely determined
by the Committee on Rules, by whom changes in the
rules must be reported in order to come before the
House. It is the usual practice in the resolution for
a special order, to fix the time when the final vote on
the measure concerned shall be taken. Special days
are set apart for the consideration of particular busi-
ness, as follows : Friday of each week, for private
bills; the second and fourth Monday of each month,
for bills reported from the Committee on the District
of Columbia ; the first and third Monday of each
month, and the last six days of the session, are known
as '‘suspension days''; on these days any motion to
suspend the rules will be in order, private members
being given the preference on the first Monday and
committees on the third Monday of the month. A
motion to suspend the rules requires a two-thirds

75

AMERICAN LEGISLATURES

vote, and forty minutes’ debate is allowed on sueli
motion.

Debate in the House is regulated by a very compli-
cated code of rules. No member is allowed to occupy
more than one hour in debate, nor may he speak more
than once upon any proposition unless he is the intro-
ducer of the pending matter, or the member report-
ing a measure from a committee. It is however per-
missible for members who have spoken on the main
question to speak again on an amendment. During
debate in the House, a member must confine himself
strictly to the subject under discussion, but this is not
the rule during general discussion in the Committee
of the Whole House on the State of the Union. A
member who has been recognized by the Speaker and
who has the floor cannot be interrupted by a motion
to adjourn. He may yield a part of his time to other
members for purposes of explanation of a pending
measure, but if he allows an amendment to be offered
in this manner he loses control of the floor. In Com-
mittee of the Whole, the time for the general debate
having been fixed by the House, the committee is
powerless to extend it even by unanimous consent.
After the general debate in Committee of the Whole is
closed, amendments may he offered under the rule
limiting the speeches on such amendments to two of
five minutes each. It is a common practice under this
rule, in order to discuss any particular provision, to
move to amend by striking out the last word of the
clause involved. On any motion to suspend the rules,
or when the previous question has been ordered on a
proposition on which there has been no debate, forty

76

THE HOUSE OF REPEE SENT ATI YES

mmntes of debate are allowed, which time is divided
equally between the supporters and opponents of the
measure. Like all legislative bodies, the House may
at any time absolutely modify its methods of pro-
cedure by unanimous consent.

The order of business in the Senate is as follows:

1. Prayer.

2. Reading of the journal.

3. Presentation of petitions, reports, etc., and in-

troduction of bills and resolutions (morning
business) .

4. Bills and resolutions may be taken up from the

calendar, if there is no objection, and discussed
under the five-minute rule.

5. Not later than two o’clock the Calendar of Gen-

eral Orders is taken up, which contains all
measures regularly before the Senate.

When called up, a measure on this calendar which
has not been made a special order, or has not
been taken up from the calendar in the morning hour
without objection, may be subjected to any kind of
treatment. It may be recommitted, passed over, post-
poned, or placed at the foot of the calendar; or it
may be debated, amended, and voted on. As there is
no controlling committee in the Senate, the time when
a vote is to be taken is fixed by agreement between
both parties. As in the House, money bills are given
a privileged status. All bills and resolutions which
have received two readings are considered by the
Senate under the procedure of a committee of the

77

AMERICAN LEGISLATURES

whole, although the Senate does not actually go into
Committee of the Whole; under this procedure no
motions are entertained upon such measures except
propositions for amendment. When a bill is intro-
duced into the Senate ‘‘by request,” the senator in-
troducing the measure thereby indicates his desire
not to be held responsible for the same.

In 1910 and 1911, a revolt took place against the
power of the Speaker, with the result that the rules
were modified in several respects, and the authority
of the Speaker was greatly curtailed. The standing
committees of the House were made elective, including
the Committee on Rules ; the membership of the latter
was enlarged to ten, and the Speaker was excluded
from it. He still has the powers necessary for the
orderly transaction of business, among them the power
of recognition ; but this has been somewhat limited by
establishing the Unanimous Consent Calendar and
The Discharge of Committees Calendar, upon both of
which motions are placed in the order of application
by members. The effect of the changed rules is not
yet entirely apparent; while they have substituted the
power of a group of leaders for the monarchical
authority of the Speaker, they do not attempt to secure
for the individual representatives the freedom in
debate and the power of initiative enjoyed by mem-
bers of the Senate.

CHAPTER III

THE SENATE

We have been accustomed to look upon the era of
1787-1789 as of such transcendent importance that
its labors and achievements would probably not be
equaled in the course of our national experience. And
yet the present bids fair to rival that great construc-
tive period, and the relations which it is called upon
to adjust are even deeper of reach than those matters
of institutional form which were settled at the earlier
epoch. For the present age deals with the co-ordina-
tion of our established political system, democratic in
form, with the powerful economic and social forces
which the recent past has brought forth and which
are oligarchic in their tendency. We are living in an
age in which new social categories are being estab-
lished. It is no longer the form, but the substance of
political and social life that is being affected, through
the creation of new groupings of power, and through
a new correlation of influences acting directly upon
social and economic life. In this era, the Senate be-
comes of particular importance, because it, of all our
political institutions, is most representative of these
great economic forces which are seeking mutual ad-

79

AMERICAN LEGISLATURES

jiistment, and are struggling for niastery over our
national life in all its phases. In the settlement of
these impending problems, much will depend on the
complexion, the attitude, and the wisdom of the
Senate, for this body is by its constitutional purpose
called upon to occupy a mediatory position. Should
it, however, narrowly interpret its function as being
representative of special economic interests, its im-
portance will ultimately be impaired, and its great
opportunity lost. Such a result would be a national
calamity because the opportunities of the Senate to
’ be a successful mediator between conflicting forces
are not equaled by any other political institution ; and
should the Senate definitely become the out and out
advocate of certain particular interests and tenden-
cies, the nation cannot avoid a bitter civil struggle, in
which all mutual understanding of the forces en-
gaged will be lacking, and which may lead to almost
any length of disturbance and disaster. These facts
constitute the basis of the real importance of the
Senate at the present time.

Senator Lodge has repeatedly argued that the
powers of the Senate have not increased during the
last hundred years, but are practically the same as
those exercised by that body at the beginning of our
history under the Constitution. It is of course easy
to find early instances of the exercise of the powers
connected with appointment, treaty-making, and
(money billsj as well as to derive these powers from our
constitutional system by a process of logical deduc-
tion. Yet as soon as we consider the actual manner
I in which these powers were exercised and the temper

80

THE SENATE

which animated the action of the Senate, it seems im-
possible to avoid the conclusion that there has been
effected, in favor of the Senate, a very substantial in-
crease of actual power and authority. As a matter of
fact, its powers were originally exercised in isolated
cases, without that systematic co-ordination and con-
stant use which has tended to place all the controlling
threads of governmental machinery in the hands of
the Senate. The use made of the power of confirma-
tion alone, has been sufficient to give the relations
between the Senate and the President a character
which they certainly did not have in the earlier
days.

Moreover, the basis on which the political authority
of the Senate rested during the first decades of our
government, was entirely different from that which
has resulted from the events of the great civil strug-
gle. In the earlier years senators were looked upon ;
as ambassadors of their respective states, limited in?
their individual discretion, and subject to instruc-i
tions from the legislatures which had elected them.
The great powers accorded the Senate at the begin-.'
ning of our government under the Constitution, there- \
fore, had their reason in the federal nature of the
Union. The Senate was powerful not so much as
Senate or as a legislative body, but as the representa-
tive of the sovereignties of the individual states. At
first sight, it would therefore seem natural that the
Senate should have suffered a loss in importance with
the gradual decline and final overthrow of the prin-
ciple of State Rights. But its powers were saved and
actually augmented through what we may call a sub-

® 81

AMERICAN LEGISLATURES

stitution of causes. In political history it often oc-
curs that an institution created for a certain purpose,
and exercising certain functions to that end, may
retain its powers though the basis and source thereof
is shifted. So, though the States’ Eights view of the
Federal Government was defeated, the Senate never-
theless increased in power because it had already
gained a historic position as a legislative body.. Its
actual power, which it now wields qua Senate, rather
than qua representative of the sovereign states, is
founded primarily upon the fact that it possesses great
permanence, experience, training, and close connec-
tion with powerful interests and organizations.

There have thus far been three fully rounded
periods in the historic development of the Senate.
During the first era, which covered the period down
to 1825, the Senate may be likened to a planet, re-
ceiving its light from other bodies. It acted as an
executive council to the President, and as representa-
tive of the state legislatures; but, in and of itself, it
was not regarded as of equal importance to the state
legislatures, or to the House of Representatives.
Clay, though elected to tiie Senate, chose to make the
House the field of his political action, and men even
preferred leadei’ship in the state legislatures, to what
was considered the somewhat empty honor of the sena-
torial dignity. During the second era, which extends
down to the close of the Civil War, the Senate, through
the presence in it of a galaxy of brilliant men, estab-
lished a claim to intellectual leadership of the Nation in
political matters. The advantages of its position were
realized and made use of with so much effectiveness

82

THE SENATE

and so much dignity, that the Senate became famous
among the legislative bodies of the world. The Senate
first attracted general public attention through its
dramatic struggle against Jackson. The fact that the
dictator was not permitted at will to mould the policy
of this body, that in fact all effective opposition to
him was there centered, made a great impression upon
the public mind. Though the Senate did not succeed
in gaining the upper hand against him, its influence
was greatly augmented, and the weaker men who fol-
lowed Jackson in the presidency, were forced to admit
its power. During the two decades after the war, the
Senate was unrivalled and undisputed in its sway.
It succeeded in wrecking the independent policy of
Johnson ; and the senatorial group, the first approach
to a political syndicate we have had, making use of
the inexperience of Grant in matters of civil govern-
ment, were able to impose on him their point of
view. Though thwarted in isolated instances by
Hayes and Garfield, the senatorial government did
not meet a powerful rival until Mr. Cleveland became
President. In the fourth period, during which the
observations of our present study are made, the
Senate has changed in complexion through the intro-
duction of a large number of men directly connected
with great economic interests, while the older type
of lawyer-statesman is growing scarcer. The inherent
possibilities of senatorial power have been more fully
realized than ever before. The mutual relations of
the various powers of the Senate have been worked
out in practice, with the result that this body has
achieved a distinct political primacy. In this it has

83

AMERICAN LEGISLATURES

succeeded not only tLrougli tlie direct exercise of
powers granted to it by tbe Constitution, but tbrough
its extra-constitutional relations with tbe national and
tbe state party organizations, and through, the indi-
vidual connections of its members with powerful eco-
nomic influences. In the place of the idea that the
Senate represents the sovereign states, there has been
developed the thought that it is directly representa-
tive of political experience, and of the interests of
property,— that is, of the conservative elements in
the State. As we are now in an era of unprecedented
economic development, in which permanent groupings
of vast interests are being effected, leading to a
hitherto unsuspected concentration of economic power
and embodying an entirely new synthesis of economic
forces, it is evident that an institution in which these
elements, of late so prominent, are primarily repre-
sented, and which is in close touch with them, will be
of the greatest weight in the settlement of future
; economic and social relations.

Thus far the philosophy which inspires the action
of the Senate has remained as individualistic as that
of the Supreme Court; and indeed there are perhaps
even fewer dissentients from the traditional individ-
ualistic doctrines among the senators than among the
judges of our federal tribunals. The controlling
point of view of the Senate is still distinctly that
which requires the fullest liberty of the individual to
gain wealth and power, and which looks with suspi-
cion upon any attempt of the State to curtail the
rights of men in dealing with their property. No
other philosophy could for the present be expected in
. 84 ■

THE SENATE

a body composed of successful men, who have gained
their prominence under a system of unrestrained com-
petition. And it is not surprising that they often shut
their eyes to the fact that this theory has become
anachronistic and that it is incongruous with the ex-
istence of concentrated economic power which threat-
ens every opportunity of individual enterprise. It
is exactly in behalf of the interests and activities of
these large aggregates of capital that the individ-
ualistic theory is at present invoked. This dominant
point of view lays the Senate open to the criticism of
being too favorable to the unrestrained power of con-
centrated wealth, and of not weighing impartially
the advisability of increased governmental control
over economic agencies. Conservative and intelligent
criticism of the Senate will not attach itself to the
fact that its members are connected with important
economic interests, still less to the individual wealth
of many among them, but rather to the spirit of the
Senate, to its uncompromising defence of class in-
terests. The Senate is constantly tempted to resort to
a merely obstructive policy, because such action not
only displays its influence, but appeals to its ideal of
conservatism. Any measure which in the remotest
manner trenches upon the interests of concentrated
wealth, which in the least impedes the activities of
great corporations, has a hard road to travel in the
Senate. No matter how insistent may be the popular
demand, no matter what expert consensus may call
for such legislation, it will be ignored or endlessly 7
delayed by the Senate, and if allowed to pass, will i
ordinarily be equipped with a few unobtrusive amend- ?

85

AMERICAN LEGISLATURES

ments which, however, are often efficacious to defeat
its main purpose. Should this tendency prevail,
should the Senate allow itself to become chiefly a veto-
ing agency, the result will be equal to a national
calamity. It is a revolutionary act to oppose healthy
growth, to shut off active currents of development;
and the Senate which by its high position is called
upon to mediate between classes and between interests,
is in need of a broader philosophy, of more liberal
temper, than many of its recent actions indicate.
Through constantly favoring certain interests, it would
sharpen existing antagonisms, and might ultimately
threaten the bursting of constitutional restraints and
the attempted creation of new and more popular au-
thorities. Moreover, the Senate ought, from its own
point of view, to consider that no political body can
retain permanent influence and power through a
purely negative policy. For the sake of the preserva-
tion of the usefulness of this admirably conceived
political institution, it is to be hoped that the Senate
will avoid the danger of becoming more and more
irresponsive to the really deep needs and impulses
of the people. The Roman Senate which at one time
came near to fulfilling every ideal of temperate and
far-seeing government, irrevocably yielded its own
supremacy, when it made itself the instrument of an
oligarchic policy. A more detailed examination of
the powers of the Senate, and of the tendencies of its
action, will make clear its great opportunities for
leadership, as well as the dangers which beset its
future development.

The Senate has the power of ^ving or withholding

' ^^'^86 "■ ■■■

THE SENATE

its consent to Presidential appointments to office.
This function was originally understood to be the
rather negative one of preventing inadvisable ap-
pointments; in the words of Jefferson, ‘‘the Senate is
only to see that no unfit person is appointed. ’ ' Speak-
ing of the appointment of a diplomatic officer, Jef-
ferson divided this function into five steps : (1) fixing
the destination, (2) determining the grade, (3) nomi-
nation, (4) confirmation, (5) commission. Only in
the fourth step does the Senate participate. It has,
according to this earlier view, nothing to do with the
original selection or nomination of candidates.^ The
present practice according to which senators in most
cases determine the nomination, came into regular use
under the weaker Presidents that followed Jackson.
It was continued during the Civil War, when Lincoln,
weighed down by cares of state, turned over matters
of patronage to the senators and representatives ; and
ever since, the control of federal patronage by the
Senate has been quite steady. Under the rules of
senatorial courtesy, the Senate refuses to ratify a
nominee opposed by the senators of his state of resi-
dence. In order to avoid such opposition, the Presi-
dent is obliged to consult beforehand the senators in-
terested in a certain appointment. It may be argued
that this is the only reasonable custom, as it is im-
possible that the President should be acquainted with
the qualifications of applicants for office from all
parts of the Union, and therefore that he would natu-
rally seek the advice of men more familiar with local

^Jefferson, Opinion on Powers of Senate/^ 1790. Works
(Ford ed.), vol. V, 61.

87

AMEEICAN LEGISLATURES

affairs, before sending in the nominations. But the
roots of the practice lie deeper. Many senators, in
the decade following the war, came to realize that it
was essential to their continuance in power that they
should control the political organization in their re-
spective states. Nor were they slow to see that the
readiest means of control lay in their hands through
their power over federal appointments. But also as
senators, members of a legislative house, they realized
the advantage of power to be gained by keeping a
strict control of the political preferment that can be
granted by the Executive. When, however, the sena-
torial group directly and openly attempted to make
the President merely an executive clerk for the regis-
tration and reporting of senatorial nominations, they
went too far, and the Presidents succeeding Grant re- ,
belled against this practice. President Hayes was
supported against the demands of the Conkling group
by the Democratic senators, and President Garfield
appealed successfully to the people and legislature of
New York against the radical attempt of Conkling and
Platt to control the federal patronage in that state.
During the administration of President Hayes, ninety-
two nominations were contested, of which fifty-one
failed of the necessary majority in the Senate.^ This
is by far the largest number of objections to presiden-
tial appointments in the Senate during any one admin-
istration. But throughout the period from Grant to
Cleveland, the number of contested cases was large;
though, through Garfield’s victory over Conkling, the
principle of the control of the several senators over
^Eish, / ‘Civil Service and Patronage,” p. 204.

88

THE SENATE

the patronage of their respective states received a cer-
tain limitation. Though there have been no attempts
since to impose this policy in so direct a manner, upon
any President, it has nevertheless remained the gen-
eral practice of Presidents to consider the wishes of
the senators interested before sending in nomina-
tions. During the period under consideration the
Senate also made extensive use of its privilege to ask
for specific information in regard to the nominees.
The resolution of April 8, 1878, which asked for in-
formation concerning the residence of nominees, was
a part of the policy of the senators to retain control
of nominations which in any manner affected their
localities. During his second administration, Mr.
Cleveland encountered the strenuous opposition of
the senators from New York to the nomination of Mr.
Hornblower and later of Mr. Wheeler Peckham for
the position of associate justice of the Supreme Court.
Unable to overcome this antagonism, he neatly turned
the position of his opponents by sending in the name
of Senator White of Louisiana, whose appointment
was immediately confirmed as a matter of senatorial
courtesy.^

During the period of senatorial government after
the Civil War, the Senate, under the tenure of office
act of 1867, controlled not only the appointment but
also the suspension and dismissal of '^presidentiaP’
officials. The act provided that the suspension of an
official during the intermission between legislative

^ There have been several eases in recent years of the des-
tination of appointees being changed in deference to the wishes
of senators.

89

AMERICAN LEGISLATURES

sessions should be submitted to, and ratified by, the
Senate at the next succeeding session, in default of
which ratification the suspended official was to be re-
instated. After Grant’s election, the act was amended
to the effect that in case of a suspension, the new
appointment should be ratified or a new nomination
made to the position vacated^

While therefore, under the law of 1867, the former
incumbent is only conditionally suspended, and will
be re-instated in ease the Senate refuses to concur in
his suspension, the amendment of 1869 leaves the
matter of suspension entirely at the discretion of the
President, and confines the attention of the Senate to
the confirmation of the new incumbent. The logical
consequences of this amendment were, however, not
fully drawn until Mr. Cleveland’s struggle with the
Senate in 1887. Mr. Cleveland had removed a cer-
tain official, and had sent the nomination of his suc-
cessor to the Senate for confirmation. The Senate at-
tempted to go into the matter of the removal, still
clinging to its right to review a suspension under the
tenure of office act. Various committees of the Senate
made demands upon executive departments for. in-
formation concerning the removal. Under instruc-
tions from the President, the transmission of the
papers in question was refused. The Senate finally
passed a resolution of censure upon a member of the
Cabinet for not furnishing the desired information.
This gave President Cleveland an opportunity for

if the Senate shall refuse to consent to an appoint-
ment in the place of any suspended officer, then . . . the Presi-
dent shaU nomihate andther person to said session of the Senate. ^ ^

90

THE SENATE

stating his position in a special message, in which he
said :

‘^The requests and demands which hy the score
have for nearly three months been presented to the
different departments of the government, whatever
may be their form, have but one complexion. They
assume the right of the Senate to sit in judgment upon
the exercise of my exclusive discretion and Executive
function, for which I am solely responsible to the
people, from whom I have so lately received the sacred
trust of office. ’ ^

The President further argued that private and
confidential papers, having reference entirely to such
Executive acts as are placed by existing law within
the discretion of the President, did not change their
nature into public documents just because they are
in the custody of a public department. The opposi-
tion of the Senate in this ease stood upon particularly
weak ground, as the term of the official in question
had expired by statutory limitation before the con-
troversy arose. The final outcome of the matter was
that the Senate retired from its position and, in De-
cember, 1886, passed a bill entirely repealing the
tenure of office act and restoring the practice of the
government as it had been before 1867.

In connection with the supervision of Executive
work by the Senate, the right to get documents and
other information from the departments is of great'
importance. A writer on the subject summarizes Ms
conclusions as follows :

t ‘Although there should be cogent reasons for a
compliance with the congressional demand for in-

91

AMERICAN LEGISLATURES

formation, yet eomplianee would be a matter wliolly
within the Executive discretion. It is certainly rea-
sonable to refuse whenever public interests or even
the rights of individuals require it. But in every
case, whether or not a reason exists, it is clear that
the peculiar structure of our government gives the
Executive the absolute power to refuse as long as the
struggle is carried on under the Constitution. What-
ever may be the advantages of this co-ordination of
forces, it certainly brings about an unfortunate clash-
ing of. authority. It indicates an amount of friction
in the governmental machinery which, even if un-
avoidable, is certainly undesirable. ’ ^ ^

President Cleveland successfully maintained the
position that matters pertaining to a question of
Executive discretion need not be submitted upon re-
quest of the Senate. He also drew a distinction be-
tween public documents and matters of a personal
or confidential nature. These are rather broad cate-
gories, and the distinctions between them have not as
yet been carefully worked out. But it would indeed
seem that the Senate is powerless in its demand for
information, whenever the President sees fit to de-
clare that the matter is one of Executive discretion,
or that the materials involved are of a personal or
confidential nature. The only recourse of the Senate
in such a case is in a general political opposition to
the President. It would of course, in general, be
impolitic for the President to refuse to give full
information to Congress. But there .is no legal ma-

^ Mason, E. 0., ‘ ' Congressional Demands upon the Executive
for Information.^^ Papers Am. Hist. Assn., V, 375.

92

THE SENATE

chinery for forcing tlie transmission of specific infor-
mation which the President may desire to withhold
on account of the reasons above mentioned. The
prevalent view in the Senate is shown by repeated
colloquies in the extra session of the Senate in 1905,
in which a number of prominent senators took part.
According to the opinions there expressed, the Senate
may direct any of the Executive departments to fur-
nish it information, in accordance with the laws by
which they are created, always excepting the Depart-
ment of State, which on account of its peculiar func-
tion and the law from which it takes its origin is not
classed with the other departments in this respect.
AVhile the Senate directs’’ the departments to fur- j
nish desired information, in dealing with the Presi-?
dent, it ^‘requests ... if not inconsistent with the
public interest.” This distinction in form is of
course due to the fact that the President holds his
powers under the Constitution, while the departments
are in the main the creatures of legislation. Not-
withstanding the limitations in its power to demand
information, the Senate is nevertheless in a position
to carry out a very strict supervision of the Executive
departments. Through their control over appropria-
tion bills and administrative legislation, the commit-
tees of the Senate which deal with the business of the
departments exercise a controlling influence, as their
ill will or opposition to a governmental department
may very materially interfere with its effective work-
ing. The attempts of the Senate to control Executive
discretion by specific legislation have, however, not
always been well conceived. Thus, in 1897, the Senate

93

AMEEICAN LEGISLATURES

endeavored by an amendment to tbe sundry civil
appropriation bill, to nullify Mr. Cleveland’s order
regarding forest reserves in tbe West. In tMs in-
stance the Senate allowed powerful and grasping
private interests to outweigh considerations of per-
manent public welfare. The House, more far-seeing
in this matter, defeated the Senate amendment, and
thus made the continuance of forest preservation
possible.

The masterly conduct of foreign affairs during the
principal period of its history is one of the first titles
to fame of that ‘'Assembly of Kings,” the Roman
Senate. The Senate of the United States, through its
power to give or withhold consent to treaties, is as-
piring^ to a similar control of the foreign affairs of
I the Nation. Not satisfied with the rather negative
; power of refusal to consent to treaties which it may
I consider unwise, it is taking a far more active and
1 positive part, through a strict supervision by its
Committee on Foreign Relations of the negotiation of
treaties, and through a liberal use of its power of
suggestion and amendment. The idea which was be-
fore the eyes of the framers of the Constitution when
they established this particular power of the Senate
was that of an executive council, a body which the
President would take into his confidence in the nego-
tiations in question. In the earlier period of our his-
tory and until quite recent times, the Senate did not
attempt to take the actual conduct of foreign affairs

^Not indeed with a conscious design to usurp power, but
with the instinctive tendency of every public body to extend
the boundaries of its jurisdiction.

94

THE SENATE

into its own hands. During the first decade of gOTern-
ment under the Constitution, the relations of the
President to the small council which the Senate then
was, were of an intimate nature; and even when the
Senate increased in numbers, the relations between
the Senate and the Department of State, were gen-
erally close enough to make it natural for the former
to repose free confidence in the secretary of state.
He was accordingly permitted to carry on foreign
negotiations and to mature foreign policies and trea-
ties without fear of having his ultimate results over-
thrown by hostile action in the Senate. During the
first decade the President himself several times atten-
ded the consultative meetings of the Upper Chamber.^
Prom Monroe’s secretaryship of state in 1811, down
to the resignation of Mr. Blaine, that position was
held constantly by men who had been United States
senators, with the exception of brief interregna, cov-
ering altogether less than one and a half years, and
with the exception of the term of William M. Evarts,
who became a senator later in his career. Since the
resignation of Mr. Blaine, an entirely new system has
come into use, Senator Sherman being the only secre-
tary of state who had also been a member of the
Senate. Under these circumstances, it is not sur-
prising that there should have been more friction
between the President and the Senate on foreign
matters than existed during the earlier years of our
national life.

Such constant friction as has during recent years

^ The attitude of that body on these occasions did not, how-
ever, encourage the continuation of this practice.

95

AMEBICAIT LEGISLATUEES

existed between the Senate and the Department of
State is, in fact, unprecedented in our national his-
tory. It began under Mr. Cleveland’s regime, when
the Olney-Pauncefote arbitration treaty was rejected,
partly on account of the unpopularity of the Admin-
istration, partly on account of a strong political oppo-
sition to any arbitration arrangements with Great
Britain. Even under McKinley, notwithstanding the
unusual relations of friendliness between that Presi-
dent and the Senate, the most important treaties sub-
mitted by the Department of State were rejected or
modified by the Senate. Again it proved impossible
to have a British arbitration treaty ratified. The
Hay-Pauncefote canal treaty failed, and this was also
the fate of several important reciprocity treaties.
The arguments used to defeat the latter give proof of
the occasional narrowness of senatorial statesmanship.
One of the strongest objections to the French reci-
procity treaty urged by certain Eastern senators, was
that the cheap jewelry business in this country might
be thereby threatened. The Senate has continued this
critical attitude with the result that no important
treaty has been allowed to pass without such modifi-
cation as has often entirely destroyed its original
purpose. The only exception is the Treaty of Paris,
in the formation of which individual senators had
taken a prominent part. The Newfoundland reci-
procity treaty was ruined through the interference
of special interests. The quarries and mines of West
Virginia and the fishing industry of Gloucester,
Massachusetts, were successfully defended by indi-
vidual senators, and the Senate as a body did not

96

THE SENATE

seem to Be strong enongh to rise to a broader view of
tlie general welfare and to force special interests into
a proper perspective.

But tbe most important controversy that bas ever
occurred between the Senate and tbe Executive on
the matter of foreign affairs, is that concerning the
general arbitration treaties (1905), because it raised
the issue as to the proper functions of the Executive
in international matters. The Senate objected to these
treaties as being too indefinite in statement, and as
giving an altogether too wide discretion to the Execu-
tive, which might virtually be used to deprive the
Senate of its share in the supervision of foreign af-
fairs. The treaties submitted provided that ^^any
matters legal in their nature and not affecting the
honor and vital interests of the Nation,” should be
submitted to arbitration, under ‘‘a preliminary
agreement setting forth the cause of the controversy. ’ ’
It was urged that these treaties would confer upon
the President the power to determine what eases
should be submitted to arbitration. The limiting
phrases used are so general in their nature that their
application depends upon the interpretation given to
them in any particular case. Whereas they would
leave the government free to refuse to arbitrate any
controversy on the ground that it regarded the subject-
matter as important enough to involve its honor and
its vital interests, the laxity of the limitations would,
on the other hand, enable the President to submit to
arbitration, without the consent of the Senate, matters
of similar importance by simply declaring that, in
his opinion, they did not affect the honor and vital

97

7

AMERICAN LEGISLATURES

interests of the Nation. It was further argued by
senators that the limitation requiring the controversy
to be legal in its nature would not be effective, as it
would be difficult to conceive of an international con-
troversy into which legal matters do not enter. As
far as the wording of the treaties is concerned, there
was nothing to prevent the President from submit-
ting to arbitration such questions as those concerning
the Newfoimdland fisheries, the Alaska boundary,
and even the navigation of the St. Lawrence. The
only restriction upon his discretion would be found
in such general political opposition as might arise to
any particular arbitration. The Senate was first
made aware of these dangers to its powers through
the objections of certain Southern senators, who ex-
pressed the fear that, under the treaties, old pecuniary
claims against their states might be revived. The
Senate therefore voted to substitute the word “ treaty
for agreement,’’ and thus made it incumbent upon
the President to submit to the Senate for ratification
every individual matter to be brought before the
Hague tribunal.

There was a precedent for this action, in the man-
ner in which in 1900 the Senate had amended a treaty
with Great Britain on the tenure and disposition of
real and personal property. The treaty provided that
any British colony might adhere to it on notice of
the British ambassador at Washington to the secretary
of state; and any American possession, upon notice
being given by the representative of the United
States at London, ‘‘by direction of the President.”
The Senate amended this so as to read “by direction
of the treaty-making power of the United States.”

THE SENATE

Considering tlie comparatively petty interests in-
volved in this amendment, the attitude of the Senate
was certainly lacking in that liberality which ought
to prevail in the mutual relations of two departments
so closely allied in functions as the Senate and the
Executive.

Thus far the Senate had not formally relinquished
the right of calling up any individual case of Execu-
tive action, and judging of its propriety on its own
merits; diplomatic action through agreements had, in
fact, taken place with the tacit consent of the Senate.
The Senate feared that through ratifying the arbi-
tration treaties in their original form, it would yield
this powder of revision, and would give permanent
legal sanction to the independent action of the Execu-
tive in settling important international affairs with-
out reference to the general treaty-making authority.
On the other hand the President, who had through
custom acquired the practical right of settling minor
matters and of making preliminary arrangements
through Executive agreement, felt with justice that,
under the present conditions of international inter-
course, diplomatic action could hardly be efficient,
were it dependent entirely upon treaties lengthily dis-
cussed and solemnly acted upon in the Senate. In the
consideration of the arbitration treaties, no practical
solution was presented. It was not found possible
to work out a form of statement, which would assure
the Senate that matters of real importance would al-
ways have to be submitted to it, and which would at
the same time leave to the President the necessary
freedom of diplomatic initiative.

The action of the Senate on the arbitration treaties,

99

AMERICAN LEGISLATURES

wMeh in their amended form were not accepted by
the President, cannot be taken as final. The demand
for the arbitration of ordinary international com
troyersies is so strong that some means will nn-
donbtedly be found, by which a general treaty will
be rendered possible and acceptable. A system under
which even the smallest subject of international liti-
gation will have to be passed upon by the Senate,
is too cumbersome to be endurable ; it is also imprac-
ticable from the point of view of the Senate as it
would cause the expenditure of too much time and
eifort. The objection that the Constitution does not
permit the Senate to entrust to the President the sub-
mission of such matters to the Hague tribunal, is not
generally considered of any force. But the Senate
may reasonably demand a more careful definition of
the classes of cases which the President shall be em-
powered to submit to arbitration by simple agree-
ment. The previous practice of our government would
indicate that claims of private persons against foreign
governments for indemnities, could safely form one
of the classes thus left entirely to Executive action.
The course of the Senate in this controversy can thus
not with justice be denounced as entirely unreason-
able, however reactionary it may at first sight appear.

The issue between the Senate and the President
upon the arbitration treaties was complicated by the
diplomatic action in respect to San Domingo. The
San Domingo protocol of January 20, 1905, which
was submitted to the Senate only upon its special re-
quest, was by its terms to have gone into effect twelve
days after the above date. The fact that such a radi-
100

THE SENATE

cal departure in our foreign policy should lia,ve been
attempted in this hurried and informal manner
brought about a critical and searching discussion of
the practice of making diplomatic arrangements with
other nations by means of protocols and agreements
of a purely Executive nature which had never been
submitted to the Senate for its ratification. The cus-
tom had gradually grown up to settle less important
matters, especially claims of private citizens against
foreign governments, by such agreements. As a mat-
ter of fact some very important international settle-
ments were made in this manner. The distinction be- ^
tween a treaty and an Executive agreement as worked:
out in practice, is that a treaty is a solemn act eon-?
firmed by the Senate, which, under the Constitution,
becomes the law of the land, and by means of which
the important foreign relations of the Nation are set-
tled j whereas an agreement is properly an Executive
act, by which preliminary arrangements are made or
minor differences are adjusted. This is evidently a
purely formal distinction, which does not in itself
clearly define the proper boundaries of either manner
of action. When the President makes an Executive
agreement, he himself judges of the relative import-
ance of the matter involved, and though the practice
rests upon the tacit concurrence of the Senate, very
many important matters were in fact withdrawn from
senatorial scrutiny by this manner of procedure/
The following are among the more notable examples of
matters settled by Executive agreement: the limita-

^ For the history of this practice, see J. B. Moore, ' * Treaties
and Executive Agreements.^' Pol. Se. Quarterly, XX, 385.

101

AMERICAN LEGISLATURES

tion of armaments on the Great Lakes (1817); the
cession of Horseshoe Reef on Lake Erie to the United
States (1850) ; the peace protocol with Spain assur-
ing the cession of Pcrto Rico (1898) ; the Peking pro-
tocol settling such highly important matters as the
indemnity to be paid by China, the rights of legations
within the Empire, etc. (1901). Under special acts of
Congress, certain Executive agreements with other na-
tions may be made concerning the postal service, reci-
procity, discriminating duties, copyrights and trade-
marks. The settlement of pecuniary claims of indi-
viduals against other nations has been quite generally
carried out by Executive agreements. Of this nature
were the Delagoa Bay arbitration of 1891 ; the settle-
ment of the Mora claims against Spain in 1886 ; the
submission of the Pious Fund eases to the Hague
tribunal in 1902— the latter being the direct precedent
for Executive action in connection with iutemational
litigation before the Hague tribunal; the settlement
of the claims of the San Domingo Improvement Com-
pany against the negro republic in 1902; in the same
year, the submission of American claims against Ven-
ezuela to a mixed commission. The San Domingo
protocol of January 20, 1905, is altogether the most
striking instance of the use of Executive agreements
in international alEairs. Under this protocol the
United States undertook to guarantee the integrity
of San Domingo, to adjust the pecuniary claims of
foreigners against that republic, to administer its fi-
nances, and to assist it in maintaining order.

The failure of the Senate to ratify the San Do-
' 102

THE SENATE

mingo treaty left the President in a position where
he had to decide, upon his own responsibility, how
far the policy of that treaty should be carried out
by him without the consent of the Senate, at least
during the period which would interYene before a
ratification could be secured. The President did in
fact adhere to the main lines of his policy ; he recom-
mended Americans to the government of San Do-
mingo for appointment as revenue collectors; he
selected, through the secretary of war, an American
bank in which to deposit the 55% of the collected
revenue which was to be set aside for the benefit of
creditors, and he gave the moral support of the
United States to the execution of these measures,
through the presence of American warships in San
Domingo ports. When the President, in 1906, was
attacked in the Senate for having on his own au-
thority substantially carried out the policy of the
treaty which the Senate had refused to ratify, his
course of action was very strongly defended by
several Eepubliean senators, who argued that the
provisions of the treaty were broader than the action
of the President, and that he had been simply exer-
cising his own constitutional powers.^

The indecisive attitude of the Senate affords great
encouragement to the strengthening of the magis-
terial power of the President. Whenever the ratifiea-
tion of a treaty cannot be secured of the Senate, the

^ See these very interesting discussions in ^ ^ Congressional
Eecord, ’ ’ Fifty-ninth Congress, 1st Session, pp. 1571, 2344.

103

AMERICAN LEGISLATURES

President will still be free, in many cases, to follow
out tbe same policy through employing his purely
^Executive powers, such as the command of the Navy,
jthe direction of the Diplomatic Corps, etc. As long
as the President, therefore, has a majority of the
Senate on his side, he need not fear to pursue a very
vigorous foreign policy ; and he will be able to carry
out most of his plans v\7ithout any reference to the
treaty-making majority of two-thirds in the Senate.
He may not be able to secure general arbitration trea-
ties, but precedent allows him by agreement to submit
individual cases to arbitration. He may not be able
to get a treaty like that with San Domingo ratified,
but he may still carry out a large part of the policy
embodied in it. Reciprocity arrangements, which in-
volve the exercise of the taxing power, could not
of course be easily effected without the use of the full
treaty-making power, and even to the latter the House
has always objected as an interference with its right
to initiate revenue legislation.^ But in general, as will
be seen, the President is by no means always power-
less, if confronted by the lack of a two-thirds major-
ity in the Senate. If the Senate, as a body, is obsti-
nate, dilatory, and merely obstructionist in its dealing
with foreign policies, the President will be supported
by public opinion and by an influential sentiment
within the Senate itself, if he makes the most of his
prerogatives. The virtual acceptance by the Eepub-

^ In our tariff legislation, the President has been given a
limited power to make reciprocity arrangements. See Tariff
Act of 1897, See. 3. General reciprocity treaties are to be

ratified by the Senate and approved by Congress.'^ Sec. 4,

104

THE SENATE

lican majority of the President's policy in San Do-
mingo, although the wisdom of that policy was hon-
estly doubted by many senators, cannot fail to add
great strength to the presidential position.

While the Senate cannot fairly be censured for
protecting its rights, and carefully weighing the prob-
able consequences of policies proposed by the Presi-
dent, it is indeed open to severe criticism for its
tendency to inaction, for withholding its advice to
which the President is entitled, and for not express-
ing, after a reasonable time, its consent or non-con-
currence. Thus, it took the Senate two years to make
up its mind regarding the appointment of Dr. Crum
to the eoliectorship of the port of Charleston; the
South American arbitration treaties were incubated
for nearly three years; and the various reciprocity
treaties have never been promptly acted upon. Sena-
tor Cullom declared before the Reciprocity Conven-
tion in Chicago last summer, that he could not safely
get the reciprocity conventions up in the Senate, say-
ing that to defeat them might offend some other
nation. The Senate has, however, not generally shown
itself very delicate of the susceptibilities of other
nations, and the reason for the continued suppres-
sion of these treaties probably lies in another direc-
tion. It is to be feared that often individual senators ■
lack the political courage to go on record on such a
measure. It is also a sign of the deplorable tendency
on the part of Congress in respect to our tariff policy,
not to judge any individual proposal upon its own
merits, but simply to oppose it on general principles,
as likely to afford a precedent for further action

105

AMERICAlSr LEGISLATURES

modifying the tariff, and thus interfering with the
cherished rights of protected interests.

{ This merely negative policy of control does not
serve to increase the prestige of the Senate. It indi-
cates a certain weakness, a lack of grasp and states-
/manship, a shrinking from responsibility, when the
Senate finds itself unable to come to a decision on
such vital questions of the day. At the very time
when it is claiming a more active and prominent share
in the management of our foreign affairs, the Senate
often exhibits extreme dilatoriness in actual perform-
ance. Its experience and training make its criticism
on matters of detail exceedingly valuable; but fre-
quently it sticks in detail, apparently unable or un-
willing to judge a question upon a broad basis of
statesmanship. If we are to have an efficient, con-
sistent, and dignified foreign policy, a large dis-
cretion ought, indeed, to be allowed the President
and the Department of State. They must be able
to seize and utilize opportunities of the day that
may not recur. Taking advantage of the psycho-
logical moment in negotiations, they must be able
to count upon not having their arrangements over-
thrown by an overcritical and jealous Senate. The
President on the other hand, whatever diplomatic
work he may undertake, should have before his
eyes the necessity of defending his course of action
before a body of experienced and far-seeing men,
men not anxious to insist upon prerogative in
detail, not jealously watching every step of the
Executive, but nevertheless judging carefully and
critically of the general scope of Ms policy. Such
106

THE SENATE

relations would be far more beneficial to our
national standing and welfare, than the carrying on
of foreign affairs through ' ‘policies’’ and agreements
of the Executive, under careful avoidance of senato-
rial co-operation, and with the concurrent attempt of
the Senate as a body to vindicate its prerogatives by
blocking the plans of the Executive whenever possible.
While the latter is not an exact picture of the
present relations between Senate and President, it
still indicates what may be the result if certain re-
current tendencies are persisted in.

The recent modifications in the procedure of the
House of Representatives have resulted in a decided
increase of the influence of the Senate. On account of
the strict rules of the House, cutting off debate and
even the right of amendment, full discussion of a
measure is rarely ever had in the House, and there
has resulted an unmistakable loss of the sense of
responsibility among its members. The prevailing
tendency is to pass important measures without due
consideration, and often in a full consciousness of
their defective nature, in the expectation that the
Senate will straighten out and complete the attempted
legislation, or lay it at rest in the quiet of its com-
mittee-rooms. The laudable attempts of the speaker
and the committee chairmen of the House to hold to
a regime of strict economy, has given the Senate a
further opportunity to exercise its influence. Amend-
ments to appropriation bills that would have no
chance of passage in the House or which havq
been ruled out on a point of order, will often be
offered in the Senate, through the friendly offices of

107

AMERICAN LEGISLATURES

some member of that body, who, through such favors,
makes individual representatives dependent upon Ms
good will. Senate debates also attract far more at-
tention than the meagre discussions which take place
in the House, because important political issues are
still hammered out in the smaller body. Though the
speeches may at times be too discursive and long
drawn out, and show a falling away from the old-
time reserve and dignity of the Senate, there is enough
of ability and experience left in the chamber fre-
quently to give its discussions a real importance and
an undoubted significance. The issues of recent presi-
dential campaigns have generally received their most
complete and adequate treatment in the Senate.

A controversy of long standing between the two
hordes is connected with the introduction of bills
raising revenue, which by the Constitution is left
entirely to the House of Representatives. The at-
tempted exercise of this power by the Senate, in a
more or less direct way, has always encountered strong
opposition. In 1831, Benton’s proposal for the abo-
lition of the duty on alum was defeated in the Senate
itself on account of constitutional objections. In
1833, Clay argued that his compromise tariff might
originate in the Senate as its purpose was not to raise
revenue but to reduce it. Webster opposed this con-
struction, and after full debate the Senate bill was
laid on the table; it was subsequently introduced in
the House as a bill of that body. In 1837, a Senate
bill authorizing the issue of treasury notes caused
much discussion in the House. Robertson of Virginia
spoke with bitterness of the long continued dictation
108

THE SENATE

of the Senate, and John Quincy Adams said that for
five years past, not one of the many revenue bills had
originated in the House. The chairman of the Com-
mittee on Ways and Means, Camberling, favored the
bill, arguing that it was a mere anticipation of reve-
nue. But, to satisfy constitutional scruples, the Senate
bill was dropped, and a House bill of similar tenor
was taken up in its stead. Senator Evans, in 1844,
reported a resolution that the bill to revise the com-
promise tariff should be postponed as it could not
originate in the Senate. The resolution was passed
after a long debate. During the Civil War, a Senate
bill providing for a five per cent, income tax was
strenuously opposed in the House by Thaddeus Stev-
ens, with the result that the Senate receded from its
position.

After the Civil War, the Senate showed less readi-
ness to heed constitutional objections to its action on
money bills, and it began to use its power of amend-
ment in such a radical and sweeping fashion as to
render at times entirely nugatory the right of intro-
duction on the part of the House. A striking instance
of this occurred in the passage of the tariff act of
1872. The House had passed a bill to repeal certain
duties on tea and coffee. To this measure the Senate
added by way of amendment a general revision of the
tariff. So strong had the influence of the Senate
grown by this time, that, notwithstanding the strong
opposition of Garfield and other House leaders to
what they considered high-handed usurpation, the
Senate prevailed in its contention. In 1878, the Senate
bill for the reduction of rates of postage was refused

109

AMEEICAN’ LEGISLATUEIS

coBcnrrence. One of the chief objectors at that time
was Mr. Cannon, who thus early began his career as
champion of the rights of the House. A new and
sweeping assertion of senatorial power came in 1883.
A revenue tariff had been quite generally demanded
by public opinion, and a commission of three ap-
pointed by the House had reported in favor of such a
policy. But the protected interests were so influential
in urging their point of view that the House did not
effect any tariff legislation, but contented itself with
a bill reducing the internal revenue. The Senate,
however, considering inaction on the customs duties
dangerous at that" time, appended a complete tariff
law to the House bill. The Democrats in the House
shouted ^^prerogative’’ with much force, but the
Republican members took their cue from the Senate
and allowed the bill to be thrown into conference
where it was accepted. Thus did it come about that
the tariff of 1883, was neither originated in the House,
nor even discussed in that body in regard to its
provisions^ In 1901, a House bill to repeal stamp
taxes imposed during the Spanish war was sent
to the Senate. The latter amended the bill by strik-
ing out everything after the enacting clause, and
substituting a new measure reducing the taxes on
beer and tobacco. This instance, beyond being the
most extreme example of the use of the power to

1888, the Senate amended the Mills tariff bill by strik-
ing ont everything after the enacting clause and substituting
an entirely different measure. As the two houses at this time
represented different political parties, their respective bills
served as party platforms on the tariff question.

no

THE SENATE

amend, is also a striking indication of the political
tendencies in the Senate ; for whereas the House de-
sired to remove the imposts that weighed npon the
people in general and were an embarrassment to
business, the Senate was satisfied with reducing taxes
the incidence of which was mainly upon a few power-
ful interests. These successive attempts to place the
origination of money bills in the hands of the Senate,
ultimately aroused a strong feeling of opposition on
the part of the House, and it became a determination
in that body not to countenance any further encroach-
ments along this line. When, therefore, in 1905 the
Senate added to the agricultural appropriation bill
an amendment relating to a drawback of the duty on
wheat, which would have affected the Dingley act,
the House, by a vote of 263 to 5, passed a resolution
returning the bill to the Senate, on the ground that
the amendment contravened the requirements of the
Constitution. It has been repeatedly held by speakers
of the House, latterly by Carlisle and Eeed, that in
order to come within this constitutional provision,
bills need not definitely propose the raising or the
lowering of revenue, but that if they in any way af-
fect the revenue or its administration, they come
within the prohibition of original action by the
Senate.

By insisting on its prerogative to have the sole
power of introducing revenue bills, the House cannot,
however, succeed in materially reducing the actual
power of the Senate over that kind of legislation.
The three most important revenue acts passed in re-
cent years were all subjected to radical modification

111

AMERICAN LEGISLATURES

5 by the Upper Chamber. It is well known how the
Wilson bill, passed by the House in the execution of
an explicit promise given to the electorate, was ut-
terly transformed by the Senate. The circumstances
under which this distinct breach of party pledges was
perpetrated by a number of Democratic senators, did
much to undermine the credit of the Senate among
the American people. Assured of its tactical posi-
tion, the Senate would not listen to compromise, but
adhered to its amendments without the alteration of
a line. In the ease of the Dingley bill, the House
played directly into the hands of the Senate. As we
have seen, the measure was forced through the House,
practically without debate; whereupon the Senate,
apparently contrary to the expectations of the House,
took ample time for the thorough discussion and the
unstinted amendment of the bill. Eight hundred and
seventy-two amendments were added, to almost all
of which the House agreed in conference.

I In the matter of appropriations, the Senate is not,
'as it formerly was, and as the Constitution intends it
to be, a cheek om tho House, but habitually increases
the appropriations made by the latter. The speaker's
economy drives members of the House to seek the
assistance of senators; and as the individual senators
can acquire power by showing liberality in this mat-
ter, there are among them few sticklers for retrench-
ment. But while the Senate attempts to add large
sums to appropriation hiUs, it has on the whole been
fairly reasonable in its action in the conference com-
mittees, as is shown by the annexed figures, which
give the original amount of the sundry civil appro-
112

THE SENATE

priation bill as it passed the House, the amount added
by the Senate amendments, and the ultimate increase
as decided upon in conference.^

SUNDRY CIVIL. APPROPRIATION BILL

Year

Amotmt of
Honse Bill

Increase pro* Ultimate In-
posed "by Senate crcaso decided
Amendments on in Conference

Amonnt
of Act

1903 $79,849,949 $6,625,331 .**2,423,006 $82,272,955

1904 56,241,210 2,658,000 1,599,000 57,840,210

1905 65,292,080 2,447,270 1,771,670 67,063,750

1912 109,567,974 6,754,830 2,471,210 112,039,184

These figures show that the increase attempted by
senators is very materially reduced by the Conference
Committee. Occasionally the House has instructed
its conferees not to accept specific Senate amend-
ments.

The principal characteristic— though a negative
one— of the procedure of the Senate, is the total ab-
sence of all rules in any way limiting discussion. The
use of the previous question was abolished early in
the history of the Senate, and Clay^s attempt to re-
introduce it in 1840 did not succeed. Since then the
Senate has come to look upon the complete freedom
of discussion as its most cherished attribute, as in-
deed it does guarantee the dignity and importance
of each individual member.^

1 ' ^ Congressional Record,’’ Conference Committee reports for
the respective years.

2 The rules originated by Mr. Hoar also protect the dignity
of members. No senator in debate shall impute to any senator
any conduct or motive unbecoming a senator,” nor refer of-
fensively to any state of the Union.

* 113

AMERICAN LEGISLATURES

The unlimited liberty and opportunity of speech
has however been repeatedly abused in the recent
past, and turned to purposes not in harmony with
the idea of rational deliberation. The silver sena-
tors were the first to make unduly extensive use of
this freedom of debate to tire out the opposition to
their measures. Senator Carter’s well-known per-
formance, when, at the end of the session of 1901,
by means of a harangue of thirteen hours, he de-
feated the river and harbor bill, did not subject him
to severe censure, because that bill was not generally
regarded as a wise measure. But his action, consid-
ering his motive— to punish the Senate for not hav-
ing given him a coveted appropriation for irriga-
tion purposes— would certainly not bear repeating
very often without seriously discrediting the Senate.
The latter was in fact the result, when Senator Quay,
himself and by proxy, with interminable talk tried to
shut out other measures and filibustered for his state-
hood bill. Nor did Senator Morgan’s probable con-
scientiousness in his objections to the Panama Canal
free from censure his use of a like method. When
Senator Platt of Connecticut poured forth everlast-
ing discourses on Cuban reciprocity, it was mth the
incidental purpose of side-tracking tariff revision.
Earnest, explicit, and thorough discussion of a mea-
sure has become a favorite method of the Senate for
the postponement and defeat of other measures, an
open attack upon which would be considered im-
politic. What Senator Carter did in 1901, the rep-
resentative of South Carolina threatened to do two
years later, in his successful attempt to force upon
'll4 ' '

THE SENATE

the Senate a claim of his state for $47,000, which,
after deduction of a valid federal set-off as adjudi-
cated by the proper authorities, actually amounted
to 34 cents. This extreme instance of what Senator
Yest called blackmailing the Senate, seems to have
been the straw that broke the camel ^s back. It
aroused a deep sense of indignation on the part of
the House, leading to the firm resolve not to submit
to such tactics on the part of the Senate in the future.

At the end of the session, after legislative measures
have been subjected to extensive discussion in the
Senate, and when little or no time remains for action i
in the House, the conference committees meet to dis- 1
cuss the points of difference between the two houses. }
At this time the representatives of the Senate are apt
to use the inability of that body to close discussion
as a cudgel to be held over the House of Representa-
tives, in order to force it to accept the point of view
of the Senate. Their arguments upon such occasions
take the following form, ^^This is the best we can
secure. Should we introduce an enactment comply-
ing with the wishes of the House, it would inevitably
be talked to death by certain senators who are op-
posed to this measure. Therefore, if any action is to
be had at all we must adopt the compromise proposed
by the Senate.” The repeated use of this argument
finally drove the leaders of the House to remon-
strance; after the incident of the claim mentioned
above they made a declaration of independence.
Under the rules of the House, general appropriation
bills are not allowed to include changes of existing
law. But the Senate has no such rule, and, in the

115

AMERICAN LEGISLATURES

words of Mr. Hull, there is hardly a conference re-
port adopted by the House that does not contain legis-
lation which could not have been brought in under
the rules. ’ ’ ^ When in February, 1903, the Senate
added to the army appropriation bid an amendment of
the law concerning the retirement of officers, it was
pointed out that these provisions would have no
standing under the House rules and Mr. Cannon de-
clared, ‘Hn this body close to the people, we proceed
under the rules. In another body , . . legislation is
by unanimous consent. But indignation rose to
its full height, when the South Carolina claim had
been forced down the unwilling throats of the power-
less conference committeemen of the House. On this
occasion Mr. Cannon made the following statement
of remonstrance:

‘‘Gentlemen know that under the practice of the
House and under the rules of the Senate the great
money bills can contain nothing but appropriations in
pursuance of existing law, unless by consent of both
bodies. If any one of these bills contains legislation,
it must be by the unanimous consent of the two
bodies ; and the uniform practice has been, so far as I
know, the invariable practice has been, with the ex-
ception of one amendment upon this bill, that when
one body objected to legislation proposed by the

^The House itself, as we have seen, is not always strict in
its adherence to the above rule; but at any rate the introduc-
tion of new legislation in the general appropriation bills is
confined generally to provisions in extension of services already
sanctioned by law, while entirely extraneous legislation, not
germane to the specific subject matter of the appropriation
bill, would not be permitted.

3^ ^Congressional Record,’^ Vol. 36, Part 3, p. 2347.

116

THE SENATE

other npon a-n appropriation bill, the body proposing
the legislation has receded. . . .

^‘The House conferees objected, and the whole de-
lay has been over that one item. In the House of
Representatives, without criticizing either side or
any individual member, we have rules, sometimes in-
voked by our Democratic friends and sometimes by
ourselves— each responsible to the people after all
said and done— by which a majority, right or wrong,
mistaken or otherwise, can legislate.

^Hn another body there are no such rules. In an-
other body legislation is had by unanimous consent.
In another body an individual member of that body
can rise in his place and talk for one hour, two hours,
ten hours, twelve hours. . . .

. Your conferees were unable to get the
Senate to recede upon this gift from the treasury
against the law, to the state of South Carolina. By
unanimous consent another body legislates, and in
the expiring hours of the session we are powerless
without that unanimous consent. . . .

Gentlemen, I have made my protest. I do it in
sorrow and in humiliation, Hut there it is ; and in my
opinion another body under these methods must
change its methods of procedure, or our body, backed
up by the people, will compel that change, else this
body, close to the people, shall become a mere tender,
a mere bender of the pregnant hinges of the knee, to
submit to what any one member of another body may
demand of this body as a price for legislation. ’ ^ ^

It can admit of little doubt that in its opposition
^'^Congressional Eeeord,'’ Vol. 36, Part 3, pp. 3058-9,
March 3, 1903.

117

AMEEICAK LEGISLATUEES

to the use of the liberum veto by individual senators,
the House will enjoy the full sympathy and the
hearty support of the American people. Nor can
the members of the Senate themselves desire that
such a practice should become customary, for, though
it would upon occasion give individual senators great
power, it would soon completely undermine the credit
and authority of the Senate. It is a distinctly feudal
principle, by which the desire of one man, however
prominent, may defeat the action of the State, “-a
principle similar to that which resulted in the political
disasters and ultimate downfall of Poland. In the
United States, great interests, struggling for feudal
privileges, might be glad to entrench themselves be-
hind the liberum veto of individual senators whom
they control. But the more statesmanlike influences
in this body oppose such a degradation; and they
have not permitted the frequent abuse of this great
discretionary power, which has been confined gener-
ally to the defeat of minor or local legislation. The
danger however is present and calls for constant
watchfulness on the part of the men whose aim it is
to increase the true authority and dignity of the
Senate.

While in the last few decades, many important
measures have found their grave in the Senate, and
;the Senate has attracted attention by its obstruc-
tionist policy, it must not be forgotten that most
of the important legislative enactments, not only in
matters of revenue but of general policy as well, have
come from the Senate, or have there received their
characteristic form. We have already discussed the
118

THE SENATE

history of the recent revenue bills. The currency
question was settled by the silver purchase repeal act ;
the legislative solution of the trust problenij as far as
hitherto attempted, consists of the Sherman anti-
trust and the Elkins anti-rebate laws; the govern-
mental policy of our dependencies and our relations
to Cuba were determined by the respective Senate
amendments to the army appropriation bill of 1901,
to which the House gave only one hour of discussion.
The Senate also defeated the Force Bill, a greater title
to credit than most of its negative action, including
the defeat of the Panama legislation in 1905 under
the leadership of Senator Gorman. The railway rate
bill of 1906 is an exception, being a House measure.
But its discussion in the Senate was careful and thor-
ough, and it received some important amendments,
including the provision for a broad judicial review.

The manner in which the experience and the legal
ability of the Senate are used in a detailed criticism
of proposed measures, is shown by the treatment of
the Philippine railway bill in December, 1904. The
bill, as originally prepared by the Insular govern-
ment and introduced and passed in the House of Rep-
resentatives, provided for the high interest guarantee
of five per cent, on the capital invested in construction,
and did not make the treasury advances an effective
lien upon the property of the railway companies.
By the Senate amendments, the interest was reduced
to four per cent., and the rights of the government
were effectively protected by an adequate lien with
indefeasible priority over other claims. Examples
of such useful amendments of the details of legisla-

119

AMERICAN- LEGISLATURES

I tion might be nmltiplied. They show bow carefully
^ the Senate scrutinizes proposed measures and how
much legislative expertness it contains. In order to
play a determining part in the Senate a man needs
more than purely ornamental attainments; in fact,
the men who gain prominence in that body must be in-
ured to the hardest kind of work. There are of
course some drones, rich men who look on the Sena-
torship as an opportunity for personal display like a
box at the opera, and who care little for the real
business of the Senate. But they fortunately do not
as yet form a numerous class. Senator Hoar, speak-
ing of the labor imposed upon members of the Senate,
estimated that the Committee on Claims alone re-
quired of him more individual work than is per-
formed in a year by any judge of a state court, and
that the amounts dealt with were greater than those
involved in the annual litigation before any state
Supreme Court. The state judges might dissent from
this estimate, or from the first part of it, but at any
rate it indicates the impression which the drudgery
of committee work made upon Mr. Hoar.

A study of the Senate would be incomplete were it
to give no attention to those relations which lie out-
side of the legislative and executive functions of the
Senate. Through the connection of individual sena-
tors with the party machinery in states and nation,
and also with powerful economic interests, the political
influence of the body itself is greatly enhanced. The
advantageous position of the senators with respect to
the control of party machinery was recognized as soon
as the Senate had made good its powers over the fed-
120

THE SENATE

eral patronage. Professional politicians, whose chief
stock in trade is the procuring of public office, soon
developed a vivid interest in the senatorial position.
Before long, men who were supremely successful in
the organizing of the political forces of the State,
claimed for themselves the high honor and the potent
influence of the senatorship ; and they often gave the
position of junior senator to a personal ally whose
chief political qualification consisted of liberal cam-
paign contributions. The direct control which the
party machinery exercises over the state legislatures,
and over the workings of the caucus system, makes it
essential to the senator, if he be not himself the boss,
at least to court the good graces of the party mag-
nates. He must be a master of practical polities. In-
deed, most senators, often against their personal lik-
ings, find that the major portion of their time is taken
up with the nursing of political support at home. This
development has introduced into the Senate a class of
prominent politicians, who are often lacking in those
qualities of statesmanship which the traditions of the
Senate demand, who are simply shrewd players of
the intricate game of local politics, and who have
introduced commercial ethics into political life.
Nevertheless it is apparent that the power of the
Senate as a body has been enhanced by this direct
connection with, and control of, the party organiza-
tion. The dominating influence of the Senate in this
matter was never more clearly shown than in the
Republican convention of 1900. Both the temporary^
and the permanent chairmen were senators j the four
nomination speeches were made by senators; and
121

AMERICAN LEGISLATURES;

there were seven senators on the most important com-
mittee, that on Resolutions, which drafted the national
platform. The National Committee appointed by the
convention contained five senators, among them Hanna
(as chairman) and Quay. The advisory council ap-
pointed by the National Committee, had three sena-
torial members, among them Platt and Depew; while
Hanna, Quay, and Scott were members of the Execu-
tive Committee. So well organized was the senatorial
group at this time, that the selection of the Presiden-
tial candidate was largely determined by their dis-
cretion, both in 1896 and in 1900. In consequence,
the influence of the Senate over the Executive was
greatly enhanced during this period. The Senate did
not take quite so prominent a part at the convention
of 1904. Mr. Cannon acted as permanent chairman ;
but Senator Lodge headed the Committee on Resolu-
tions, and the Republican National Committee of the
year contained six senators. Through their control
hf the party machinery, senators have gained a de-
cided ascendancy over members of the House of
Representatives. In some eases the latter owe their
political life and prominence almost entirely to the
sufferance of the senator. This was notably true of
the Pennsylvania delegation in Congress during the
Quay regime. But even where the congressman has
independent political strength, it is advisable for him
to remain on a good footing with the Senators, as
the heads of the party machinery in his state ; and
especially should he be ambitious to enter the more
select chamber, the attitude toward him of the senior
senator will often be of determining influence,

122 ' ■ '

THE SENATE

Besides gaining power tlirongh. the conneetion of
its members with the party organization, the Senate
has further increased its influence through the fact
that senators are in many cases in close touch with
powerful economic interests. In the earlier Senates,
the profession of law constituted in every respect the
dominant element. Men of broad interests and sym-
pathy, who frequently had won their fame through
high professional attainments or through brilliant
gifts of oratory— the lawyer-statesmen— were an
elite of sufficient distinction to establish the reputa-
tion of the Senate on a solid base. But at present,
the profession of law itself is no longer so broadly
representative, so universally trained, and so con-
stantly in touch with the masses of the people, as in
the days of men like Clay, Webster, and Carpenter,
who had a general practice such as is now carried
on only by the lawyers of small county towns. The
lawyers of the Senate of our day are of a different
type, as a rule. They are either keen men of business
who have early abandoned the practice of law to de-
vote themselves to industrial promotion, or they are
specialists who have won prominence as counsel for
great corporate interests. The point of view of these
men is utterly different from that of the mid-century
lawyers. Their technical and business training is in-
deed of the greatest value in the work of legislation.
They have a keen eye to distinguish the feasible from
the merely desirable. Their detailed criticism of
bills and of treaty drafts is informed with a long
experience in practical business matters. There are
among them still a few men who can make an ad-
123

AMERICAN LEG-ISLATUEES

mirable constitutional argument, though their number
is decreasing.

It is, however, natural that the senators should
look upon political matters from the vantage ground
of their special experience and of the interests with
which they have been connected. There need be in
this no suspicion of direct corruption; there may, in
fact, often exist a conviction of absolute impartiality.
Yet their attitude of mind and of temper is never-
theless characterized by that conservatism— often ex-
aggerated— of the man to whom is intrusted the man-
agement of great economic interests. In some in-
stances, unfortunately, the representation of interests
has gone beyond a mere natural bias or attitude of
mind. There are senators whose controlling purpose
seems to be to protect and advance the interests of
particular combinations of capital, without any regard
to the broader principles of statesmanship, or even to
their plain duty as representatives of the common-
wealth. The Senate was given its varied and exten-
sive powers under the Constitution as representing the
semi-independent commonwealths which Joined to-
gether to form the Union. Now that the national idea
has superseded the old view of states’ rights, it is to be
feared that these powers may be exercised not indeed
under instruction from the state legislatures, but
upon dictation from great economic interests, in which
the local and the national character is often com-
bined, but whose aims are nevertheless much narrower
than those of a commonwealth ought to be. It ad-
mits of no doubt that though the Senate has gained
in influence through its connection with these interests,
124

THE SENATE

it would inevitably court tlie ultimate loss of its
power were tbe individual senators generally to de-
grade themselves from being the tribunes of a com-
monwealth to a mere attorneyship-in-fact for certain
powerful corporate interests.

Much hope has recently been expressed that the
establishment of popular election of senators may
cause an improvement in the personnel of the Senate
through breaking down the influence which party
organization and corporate interests exerted over
the choice of legislatures. Indeed, in the primary
election laws a method had been found whereby, with-
out an amendment of the Constitution, senators could
virtually be elected by popular vote, and the legisla-
tures reduced to the mere registering function of the
Federal Electoral College. Some of the senators who
were elected in the states where this system had been
introduced, published with pride the popular majority
by which they had been ‘ ‘ elected. ” As to the effect of
the change, thus far all reasoning can merely be
guesswork. Whether it will result in developing a
broader and more statesmanlike leadership, only the
future can show. It would, however, seem that it will
hereafter be easier to arouse a strong and effective
public sentiment against a man who has proved him-
self specially unworthy of the senatorial office, or in
favor of a leader who has the qualities of mind and
character which are apt to win the confidence and
admiration of the people. Whether such leaders will
always be safe and trustworthy is a question con-
nected with the general problem of democracy.

125

CHAPTER IT

THE STATE LEGISLATURES

That the importance of state legislatures in our polit-
ical system is not generally realized by the American
people, is apparent from the scanty attention given
to the business and procedure of these bodies and from
the manner in which Americans affect to hold in slight
esteem everything connected with them. And yet
it admits of no doubt that for the proper func-
tioning of our complex National Government, it is
very necessary that the state legislatures should be
efScient and respected. We have so thoroughly
turned our backs upon the theory and practice of
states’ rights that we are in danger of going to the
other extreme, and of seeking political salvation in a
constant expansion of the sphere of the central gov-
ernment. When centralization and combination are
the watchwords of the era in economic life, it is
natural to conclude that all social and political func-
tions and activities should be similarly centralized.
And yet when we contemplate the results brought
about by economic centralization, we are somewhat
appalled by the power and the cruel and inconsid-
erate action of the machinery thus created, and there
awakens a desire that we might avoid a condition in
126

THE STATE LEGISLATURES

wMcb. the entire national life would he controlled by
a small group of men. All indiscriminate decrying
of state governments, and especially of state legisla>
tiires, is unfortunate and dangerous; because instead
of arousing in the citizens the purpose of strength-
ening and purifying the local institutions of govern-
ment, and thus allowing that condition of national
life to continue in which political experience is varied
and deepened by local differences, such course of
action induces men to look upon the organs of state
government as hopelessly inadequate, and to center
their attention and their purposes entirely in the
Federal Government. Even though centralization has
gone far, the field occupied by the state legislatures
is still exceedingly important, and the very fact that
legislative experiments are rendered possible by this
system and that problems like economic control can
be worked out in smaller areas before being attempted
on a national scale, renders the continued strength of
local institutions highly desirable. The legislation of
the states is actually of far greater importance to the
citizen than that originated in Congress. The general
law under which we live is entirely under the control
of the state legislatures. Such momentous matters
as the relations between labor and its employers, the
law of the family and of property in all its ramifi-
cations, the law of personal injuries and of crimes,
are all within the state legislative field. Moreover, the
last decade has brought a remarkable development in
the administrative functions of our commonwealths, far
beyond anything that could have been foreseen dur-
ing the earlier era of our history.

127

AMERICAN LEGISLATURES

Yet unhappily it is true that state legislatures
have attracted public attention and caused public
discussion not so much on account of the importance
of their functions, or the greatness of the interests
with which they deal, as on account of the bottom-
less corruption which has disgraced so many of them.
Their evil fame has almost outweighed in the public
mind the general usefulness of these institutions
throughout the country. It is indeed time that a
different attitude should be assumed toward these
bodies, that more intelligent and discriminating at-
tention should be given to the efforts of their mem-
bers, It has become almost fashionable to talk of
state legislatures as bodies in which men of ability
and respectable character are in a disappearing minor-
ity, and yet even the most superficial acquaintance
with actual legislatures will immediately reveal the
fact that they are very fairly representative of the
American people, and that there is in them a great
deal of honest effort to grapple with the difficult
problems of legislation, misguided though this effort
may be at times for lack of authentic information, and
thwarted by certain vicious arrangements in our
political system. The state legislatures by no means
deserve to be treated as unimportant or cast aside as
vitiated beyond hope. Such superficial views must
give way to an intelligent study of the workings of
these institutions, to a sane and impartial criticism;
and before all, there ought to be a sustained effort
to support the men who are with honest purpose
struggling for equitable and effective legislation, By
giving them countenance and by raising their acMeve-
128

THE STATE LEGISLATURES

ments to that plane of public importance which they
deserve.

The state legislatures differ from Congress in that
they do not exercise specifically delegated powers but
have a general, residual legislative authority. In the
state constitutions their powers are not enumerated
as are those of Congress in the Federal Constitution,
legislative power being conferred upon them in the
most general terms. The essential character of their
authority is more like that of the English Parliament,
but on account of the division of powers they are
beset with limitations from which that body is free.
Originally, in our state constitutions, very broad
powers were accorded the legislatures, powers not
even limited by an executive veto.^ But with the
growing mistrust of legislatures and the disappoint-
ment with the results achieved by them, a strong
tendency has arisen to impose upon them limitations
which cut down their power and place their pro-
cedure under the control of public law.^ The ways
in which this has been accomplished may be roughly
summarized in the following manner :

First, it has Been attempted to diminish the amount
of legislative action, by limiting the duration of ses-
sions and making them less frequent.

Second, by defining and regulating the main steps

^Except in Massachusetts and New York, Madison spoke of
the legislatures as omnipotent.

2 Tiie discussions in the Pennsylvania Constitutional Conven-
tion of 1873, and in the New York convention of 1894, are
especially full and interesting on the subject of legislative
limitations.

9

129

AMERICAN LEGISLATURES

in procedure, safegnai’ds have been provided against
Jaasty, ill-considered, and one-sided legislation.

Third, the making of special and local laws has
been quite generally prohibited where a general law
can be made to apply.

Fourth, the veto power of governors has been
created and its use encouraged.

Fifth, certain express limitations have been im-
posed upon the legislative power with respect to the
subject matter of laws, and large fields of legislation
have been occupied by constitutional revisions and
amendments.

Sixth, all these things have led to far greater inter-
ference with legislative enactments on the part of the
courts, which during the earlier decades of our na-
tional life were exceedingly anxious to avoid any
appearance of control over legislative activities.

The above express limitations we desire to take up
and discuss in this chapter. But the inherent limita-
tions of legislative power under our system, as well
as those expressly imposed under the Federal Con-
stitution, have already been so fully discussed and
expounded, that we shall refer to them only inci-
dentally.^ The express limitations upon legislative
power with regard to the subject matter of laws, will
also not be further discussed in the present volume,
which deals primarily with legislative methods and
organization.

It is natural under our system that the general
organization of the legislature should be determined

^ The student is referred especially to Cooley, ^^Gonstitu-
tional Limitations. ^ ^

130

THE STATE LEGISLATUEES

in its main outlines by tbe constitution. Thus it is
provided in ail the states that there shall be two
houses, a Senate and a House of Representatives.^
Their membership is based indeed upon the same
electorate, but the Senate districts are larger and the
qualifications for election to that body are usually
somewhat stricter.^ The membership in the Senate is
ordinarily so arranged that this body like the United
States Senate has a permanent organization, only a
certain portion of its members being chosen at any
one election. A number of constitutions fix the com-
pensation to be paid to members of the legislature,
and where this is not done, it is quite usual to forbid
an increase of their emoluments during the term of
office. Where the compensation takes the form of a
per diem allowance, it is customary to limit the dura-
tion of the session, or at any rate the number of days
for which compensation may be drawn.^ This limita-

^In some states the designation is ‘^Assembly,'’ in others

House of Delegates.^’

2 See Chap. VII for a discussion of the basis of representa-
tion and qualifications. 3 m twenty-four states.

4 The session may not exceed ninety days in Colorado, Mary-
land, and Minnesota; seventy -five days with pay to the legisla-
tors in Tennessee, seventy days with full pay in Missouri,
sixty days with pay in Texas; sixty days in Arkansas, unless
extended by a two-thirds vote of each house ; sixty days ab-
solutely in Delaware, Florida, Indiana, Kentucky, Louisiana,
Montana, North Carolina, North Dakota, Ehode Island, South
Dakota, Utah, Virginia, and West Virginia; fifty days in
Alabama, Georgia, Kansas and Nevada and forty days in South
Carolina and Wyoming. It is obvious that most of these
periods are too short for a careful consideration of the needed
legislation. Several of the states still preserve the old prac-

131

AMERICAN LEGISLATURES

tion of sessions is due also to the desire to oblige the
legislators to get through their business with due dis-
patch and to save the state from the evils of over-
legislation. This motive has led to a quite general
movement toward making the sessions less frequent.
Whereas formerly annual sessions were the common
practice, at present only six states (Georgia, Massa-
chusetts, New Jersey, Rhode Island, New York, and
South Carolina) allow their legislatures to meet
every year. The ordinary system is to have biennial
sessions, but in two Southern states the aversion to
legislative meddling has led to the extreme measure
of making the sessions quadrennial.^ The principal
argument of those who favor such restriction of legis-
lative activity is that with less frequent legislative
sessions, the more important matters will occupy the
attention of the legislators, and individual members
will recognize the futility of advancing pet schemes
of a merely personal or local interest. But even
granting that the quality of legislation could not Be
improved by this means, at any rate, it is argued,

tice of aUowing a session unlimited in length and these are
usually the states which pay members of the Legislature an
annual salary. In Massachusetts, the governor may prorogue
or adjourn the Legislature at any time, for not over ninety
days, and in New Hampshire, he may adjourn it after three
months of the session have passed. Extra sessions are usually
called by the governor, as he sees need, and are frequently
limited in length by the state constitutions to twenty, thirty,
or forty days.

^Mississippi and Alabama. The Legislature meets, however.,
in the interval in extra sessions, the action and duration of
which are strictly limited.

132

we shall have less of that poor quality to which we
have been accustomed. It is hoped that, meeting
more rarely, the legislature will attract greater public
attention, and thus become a desirable field of activity
for men of ability. The work to come before it may
be to a certain extent prepared by administrative
ofScers, so that the legislature can immediately enter
upon the discussion of specific measures. On the
other hand, it is urged in opposition to this view that
the attempt to shorten sessions and render them less
frequent will necessarily lead to even more hasty
legislation than we have had in the past. During
the short time available, so many interests will be
pressing for a hearing that the legislators will become
helplessly confused and will in the end vote on most
measures without due investigation. Moreover the
continuity of experience which is gained by more fre-
quent sessions, will be lost where the intermission is
too long. It may indeed be impossible materially to
affect the quality of the legislative product by mere
changes in the length and frequency of sessions ; and
it is certainly conceivable that the annual General
Court of Massachusetts may legislate more carefully
than would be possible in the rush of a quadrennial
session. In general, however, the biennial session com-
mends itself to the judgment of the American people.^

^When in 1895-6 tlie question of biennial sessions was dis-
cussed in Massachusetts, it caused the greatest political con-
troversy of recent decades in that commonwealth. Although
the business interests were strongly in favor of biennial ses-
sions, the old democratic town meeting spirit of Massachusetts
asserted itself and maintained the annual session.

133

AMERICAN LEGISLATURES

The distrust of legislatures is nowhere more strik-
ingly apparent than in the detailed provisions in rela-
tion to procedure which many of the more recent con-
stitutions contain. The purpose of such constitutional
enactments in regulating and defining the various
steps of procedure is to avoid ill-considered and head-
long action and the abuse of legislative power by nar-
row interests working in the dark. These provisions
are not only interesting in themselves, as safeguards
for proper legislative procedure, but they have given
rise, one might say, to a new branch of jurisprudence
in the attempt of the courts to arrive at logical rules
for their enforcement. In this the courts have been
but partially successful, and no clear and definite
principles as to the application of these constitutional
provisions have as yet been developed. Although the
provisions themselves are apparently simple enough,
their administration under control of the courts is
nevertheless full of difficulties and contradictions.

Most of the constitutions provide that no law shall
be passed except by bill, and they also generally pre-
scribe the form of the enacting clause. In states where
this requirement exists, the resolution, being less for-
mal and lacking the enacting clause, cannot be used
for the purpose of making laws. In general pailia-
mentary law, the purpose of the resolution, which
ranks below the bill in formal dignity, is to declare
the legislative will in subsidiary and incidental mat-
ters, or to give formal expression to the opinion of
the legislative body on some matter of policy.^ In

^Mr. Willard in his ^^Legislative Handbook,?^ summarizes

134

THE STATE LEGISLATUEES

political theory, the resolution, when used otherwise
than as a mere expression of opinion, is really a legis-
lative ordinance; in other words, an administrative
provision proceeding directly from the legislature.
Such administrative regulations may indeed be made
by resolution even in states where no law' can be
passed except by bill, but in general the scientific
character of the resolution is not carefully observed
in its use by legislative bodies. In certain states
(a. g, Massachusetts, Maine, South Carolina, as well
as by the United States Constitution) joint resolutions
are required to be submitted to the executive who has
the right of veto, as in the case of bills, but their use
for purposes of general legislation is infrequent.^

the various purposes for which the resolution may be used as
follows :

a. Incidental to legislation, affecting procedure, or the action
of committees.

h. Expressing approval or disapproval, condolence, thanks.
Declaratory of policy.

0 . Urging special action on national representatives, or on
executive officials.

d. When used for legislation, it is generally for one of the
follomng administrative purposes: (1) special directions to
state officials, (2) small appropriations, (3) appointment of
commissioners, (4) joint action with another state, (5) exhi-
bitions and commemorative observances, (6) administration of
the staters property, (7) small contracts, (8) fixing of com-
pensation, (9) directions as to a vote on constitutional amend-
ments.

^ The matter of joint and concurrent resolutions was consid-
ered and reported on in 1897, by a Senate committee (Fifty-
fourth Congress, 2d Sess., Senate Eeport, No. 1335). ^^The
practice hitherto has been to deal with matters which are of
importance merely to Congress and not to the President, which

135

AMEBICAN LEGISLATURES

Another provision which is found in most consti-
tutions is that no bill shall contain more than one
subject, which shall be clearly expressed in the title.^
The reason for this restriction is apparent. A clear
and expressive title is required so as to give specific
notice of the legislation attempted, both to the legis-
lators and to the public.^ But in a number of states,
if the act relates to more subjects than are expressed
in the title, as much as is so expressed will stand,
either by express provision of the constitution or
under the decisions of the courts.® In general, the
courts have been very liberal in their construction of

are mere expressions of opinion, or regulations of congres-
sional procedure, by concurrent resolutions, wMch, unlike joint
resolutions, are not submitted to the President.

Concurrent resolutions from their very nature require the
concurrence of both houses to make them effectual, and if the
Constitution in Section 7, . . . has reference solely to the form,
and not to the substance of such resolutions, they must of
course be presented to the President for his approval.

‘^Por over a hundred years, however, they have never been
presented. They have uniformly been regarded by all the de-
partments of the government as matters peculiarly within the
province of Congress alone. They have never embraced legis-
lative provisions proper, and hence have never been deemed to
require Executive approval. ^ ’

^In most of these constitutions special exceptions are made
in the case of appropriation bills and codifications.

2 The provision with respect to the title was first used in the
Georgia constitution of 1798. It is believed that it was in-
serted in consequence of the abuse of granting away large
domains under the Yazoo act of January, 1795, which bore the
title, ‘^an act for the payment of the late state troops.
(Savannah -y. State, 4 Georgia, 38.)

® Unity -u. Barrage, 103 U. S., 447.

136

THE STATE LEGISLATURES

the requirement of an expressive title, and in a few
eonunonwealths the courts have even held that the pro-
vision with respect to subject matter and title is
merely directory, and does not render void laws
passed in contravention of it.^ A law is not voided
by the fact that its title is general, as long as it fairly
describes the purpose of the bill, and does not cover
incongruous provisions. The phrase ^^and for other
purposes therein mentioned,’’ is, however, held too
vague to be of any effect in validating parts of a
statute which could not be comprehended under the
more specific title of the aet.^ The requirement of,
unity of the subject matter is intended to prevent log-1
rolling legislation, as when various incongruous pro-
visions representing the desires of special interests
are united to be carried through under a general com-
promise; it also prevents the saddling of a bill with
provisions, not germane to it, which are appended to
a meritorious measure in order to hide their weak-
ness or viciousness.®

The constitutions, of a number of states^ require^
that no bill shall be altered or amended so as to
change its original purpose, a provision which would

^Washington v. Page, 4 Cal., 388. State v. Covington, 29
Ohio St., 102.

2 Not so in Georgia, where this phrase is treated as suflacient
notice to avoid surprise. Martin v. Broach, 6 Ga., 21.

3 In New York and Wisconsin, the requirement of unity of
subject matter applies only to private and local bills. In many
other states it was first confined to this class of legislation, but
has subsequently been extended.

^Arkansas, North Dakota, Pennsylvania, Colorado, Alabama,
Wyoming, Montana, Missouri, Texas, Washington.

m

AMERICAN LEGISLATURES

prohibit the favorite practice of some legislative
bodies of amending a bill by striking out everything
after the enacting clause and substituting a different
measure. The form of amendments is quite generally
subjected to the specific limitation that no law shall
be revised and amended by reference to its title only,
but that so much thereof as is amended shall be re-
enacted at length. It is of course not necessary that
the original act should be set out in full, but the sec-
tion as amended must be given. This provision is
aimed at the practice of amending by merely citing
the words to be changed and those to be substituted
without giving their context. This custom led to
serious abuses, because legislators lacked the time to
look up every reference of this kind and to trace every
amendment proposed. At present it is a common
practice either to italicize the words and clauses
which have been changed or to state first the specific
words to be substituted and then to cite the entire
section as amended.^ While the constitutional pro-
vision regulates the manner of making specific and
express amendments, it does not touch implied amend-
ment through laws totally or partially inconsistent
with previous enactments. Under the principle that
5 the last expression of the legislative will prevails, the
' courts are of course bound to enforce the later in
place of the earlier provisions. Much confusion and

g. Section 3 of chapter 280 of the laws of 1905 is hereby
amended by striking out the 'words ^ ^ shall be, ^ ^ and inserting
the words *^may in his discretion be,^' so that the section as
amended shall read, ^'The governor,’^ etc. (giving the full
text of the section as amended) .

138

THE STATE LEGISLATUEES

uncertainty has thus been introduced into our legis-
lation. But it would be difficult to prevent this by
constitutional requirement alone.^ Reliance must
here necessarily be placed upon the good sense of the
legislative body, and the expert information available
to it.

In order to prevent the crowding of the last days
of the session with legislative business, several states
have adopted constitutional provisions prohibiting
the introduction of bills after a certain part of the
session has expired.^ Restrictions of this kind have
not, however, generally met the approval of constitu-
tional conventions or of the public. It is felt that it
is better to allow the legislature itself to set a time
after which no bills shall be introduced, except under
very special conditions. It is occasionally found that
legislation of a certain kind is needed which was not
thought of during the earlier part of the session. The
principle of these provisions is, however, undoubt-
edly correct; and the enforcement of strict rules in
this matter is highly desirable, as it prevents the
crowding into the last days of the session of measures

^ In Nebraska, though the constitution contains the provi-
sion that ^^no law shall be amended unless the new act con-
tains the section or sections as amended,^’ the Supreme Court
has nevertheless held that changes or modifications of exist-
ing statutes as an incidental result of adopting a new law
covering the whole subject to which it relates, are not forbid-
den by this section. ^ ’ De France v, Harmer, 92 N. W., 159.

2 E. g. Colorado, after thirty days ; California, after fifty
days ; Maryland and Washington, in the last ten days ; the last
three days, Arkansas and Texas. A similar provision in Michi-
gan has recently been repealed.

139

AMEEICAN LEGISLATURES

which would be rushed through without proper con-
sideration. Minnesota has a provision which does not
allow a bill to be passed on the day of adjournment*
This, however, simply has the effect of shortening the
session by one day for legislative purposes; the last
day is devoted to corrections of the journal, and to the
passage of resolutions and memorials. In Indiana,
there is a constitutional provision against allowing a
bill of the legislature to be presented to the governor
within two days of adjournment. In practice, how-
ever, bills are passed up to the last day, though only
such as the governor is willing to consider ; the provi-
sion therefore simply has the effect of giving him an
absolute veto on all bills passed during the last two
days of the session.

It is a very common constitutional provision that
bills are required to be read by sections on three dif-
ferent days.^ The constitutions generally provide
that this reading at length may be dispensed with by
a vote of two-thirds, three-fourths, or four-fifths of
the members present, but in some states the third
reading at least must be at length, and in these not
even unanimous consent can substitute a reading by
title only.

The recent tendency in constitution making has
been still further to surround parliamentary pro-
cedure with various restrictions and safeguards. As
an example we may cite the provision of the New
York constitution of 1894, Article 3, Section 15:

‘^No bill shall be passed or become a law unless it

/ Twenty-eight coDstitutions.

140

THE STATE LEGISLATURES

shall have been printed and upon the desks of the
members in its final form, at least three calendar
legislative days prior to its final passage, unless the
governor, or the acting governor, shall have certified
to the necessity of its immediate passage, under his
hand and the seal of the state; . . . upon the last
reading of the bill no amendment thereof shall be al-
lowed.”

The constitution of Kentucky of 1891 regulates
committee reports, and requires the printing of
bills before passage, as well as the formal affixing to
an enacted measure of the signature of the presiding
officer of each house in open session. On this occasion,
all business must be suspended, the bill is read at
length, and the fact of its having been signed is noted
in the journal. It is also provided that if a committee
refuses to report on a measure, any member has the
right to call it up for discussion and action. In Mis-
souri, upon the occasion of the formal signing of the
bill by the presiding officer, any member may enter
a protest that the bill has not been passed in proper
form. If supported by four other members, a record
of this protest will be appended to the bill when it is
sent to the governor for his signature. Provisions of
this kind, intended to secure the careful considera-
tion of bills and their proper authentication, occur in
many among the newer constitutions.^ It is an inter-

^Ie the New York Constitutional Convention of 1894, an
amendment was proposed providing that ^*no bill shall be pre-
sented to the governor unless the presiding officer of each
house shall have first certified that, in the passing thereofj the
provisions of the constitution have been obejedy^ This was

141

AMEEICAN LEGISLATURES

esting fact that .whereas in England punctuation
does not form part of an act and is not found in the
original rolls, as the act is presumably passed as read
viva voce; in the United States, where the bill passes
not as read but as printed, the enactment has been
held to include the punctuation. (Tyrrell v. The
Mayor, 159 N. Y., 242.) The simplicity and direct-
ness of the English statutes is to a certain extent due
to the fact that the wording must be rendered plain
without the use of punctuation.

In order to prevent the passing of legislation by a
minority of the House, the constitutions usually pro-
wide that in order finally to pass a bill, the majority
of all the members elected must assent to it.^ In the
case of bills raising revenue, appropriating money, or
incurring indebtedness, it is in many constitutions
provided that the assent of more than a majority of
the elected members is necessary. In many states, it
is required that the yeas and nays upon the final vote
shall be entered upon the journal. In others, they
must be so entered on the request of any one of the
members.

This brings us to one of the most complex and con-
fusing points of legislative jurisprudence. The ques-
tion has arisen whether the courts in applying the
law of the state are bound to accept as final the en-
rolled bill, authenticated by the presiding officers of

objected to as virtually giving the veto power to the presiding
officers, and it was urged that the observation of the consti-
tutional procedure could be secured through the ordinary rules
of the houses.

* In Kentucky, at least two-fifths of the elected members.

142

THE STATE LEGISLATURES

the two houses and signed by the governor ; or whether
they may go behind the authentication and examine
the journals to see whether all constitutional require-
ments have been fulfilled in the passing of the bill.
On this question the courts are in contradiction and
almost hopeless confusion. It was originally the pre-
vailing opinion that the constitutional provisions
were mandatory, and that the courts could go back
of the formal authentication, and determine from
the journals whether the constitutional provisions
had been fulfilled. But this opinion has of late been
losing ground, so that at present the courts are about
evenly balanced for and against the conclusiveness
of the enrolled bill, with a growing tendency toward
the former alternative. The general principles in-
volved and appealed to by the courts may be stated
as foUows. On the one hand it is claimed that if the
specific requirements laid down by the constitution
are not actually fulfilled, no valid legislation can
originate; and a certificate of officials cannot render
valid an act which is void, by falsely representing
that it was passed with the due formalities. The
courts, it is argued, are therefore bound to disregard
such enactments when it clearly appears from the
journal that definite constitutional requirements were
not complied with.^

In behalf of the opposing alternative, it is urged
that the Constitution directs its commands with re-

^ County of San Mateo v. S. P. E. E. Co., 8 Sawyer, 293.
Spangler v. Jacoby, 14 111., 298. Simpson v. Union Stock-
yards Co., no Fed. E., 802. Opinion of Justices, 35 IST. H.,
579. State ex rel, v. Mason, 155 Mo., 486.

143

AMERICAIT LEGISLATURES

spect to procedure to the legislature itself, and that
the latter body must be trusted to carry out these
provisions through its rules. The formal attestation
of the presiding officers of the houses is considered
on the whole better evidence of authenticity than the
journal, which is kept by the clerk, an inferior offi-
cial. The surveillance by one department of govern-
ment over another is not considered wise, and it is
believed to be a dangerous principle to hold that an
act formally enrolled and authenticated, and re-
ceived by the people as the sanctioned will of the
state, could subsequently Be overthrown by a refer-
ence to the journals.^ It will readily be seen that,
while the opinion that constitutional requirements
must be actually enforced has great logical cogency,
nevertheless the later opinion has in its favor many
practical considerations. The practice of questioning
a law which has stood on the statute books for years,
because someone may discover in the journal that a
constitutional requirement was omitted in its pas-
sage, would lead to a general unsettling of confidence
in the legal system. The public interest may seem
sufficiently protected through the mutual watchful-
ness of members of the legislature, who will insist
upon the fulfilment of constitutional requirements
in the case of measures which they oppose.^ We may
also generally rely upon the formal authentication

" See Field v, Clark, 143 U. S., 649. Lafeerty v, Huffman,
99 Ky., 80* Purdy Commissioners, 54 N. Y., 276. Sherman
v. Story, 30 Cal., 279.

® This is, however, by no means always the case. See Chapter

wm*

m

THE STATE LEGISLATURES

by officials, especially when it is surrounded with safe-
guards similar to those provided in the Kentucky and
Missouri constitutions. So the wiser course would
seem to be to rely upon the enrolled bill, the formally ;
authenticated measure, as implying that all consti-
tutional requirements have been fulfilled.

The question of accepting the formal authentica-
tion of an act as final, is complicated in those states
in which the c'onstitution, beyond merely requiring
that a Journal shall be kept, provides further that
the yeas and nays in final votes on a bill shUxl be
entered upon the Journal. The general requii'ement
of a Journal may be due simply to the purpose of
having a public record of the actions of the legisla-
ture, and does not necessarily make the Journal the
sole and final proof of the passage of laws. But
when any specific entry is directly required by the
constitution, the case assumes a different aspect, and
it may indeed be doubted whether a law can be con-
sidered valid, if such an entry has not been made.
The Supreme Court of North Carolina has clearly
stated the distinction, that, when the constitution
contains no provision requiring specific entries in the
Journal, the enrolled act cannot be impeached by the
latter; but upon the presence of such entries, where
required, the Journal alone is to be considered con-
clusive evidence.^ According to this distinction, the
enrolled bill will be conclusive proof that the ordi-
nary requirements, such as three readings, commit-
ment, a majority vote, etc., have been complied with ;

^ Union Bank v. Commissioners of Oxford, 119 N. C., 214,
(1899.)

10

145

AMEEICAiT LEGISLATURES

and the journal should not be admitted to contradict
these presumptions. But if it could be shown that
the journal does not contain the record of a vote,
which it is required by the constitution to contain,
the act would have to be considered void, although
formally authenticated. It may be urged that the
protection which the commonwealth enjoys under
such a constitutional provision would be jeopardized
under a different interpretation. Thus a bill for a
bond issue, requiring a two-thirds majority, might
upon passing by a simple majority take the form of
an authenticated act, in contravention to a specific
constitutional provision. It may be noted here that
some of the leading cases in favor of considering the
enrolled bill final, have refrained from pronouncing
upon this point, thus leaving it open for the above
construction. The validity of the enrolled bill was
perhaps strengthened most by the decision in Field v,
Clark (143 U. S., 649), and yet in that very case the
court says, in substance : ^‘To what extent the validity
of legislative action may be affected by the failure to
enter upon the journal matters expressly required by
the Constitution, we need not inquire, as this question
is not presented.’’ The court therefore merely de-
cided that enrolled bills cannot be impeached for any
omission in the ordinary constitutional procedure.
In the famous case of the United States v. Ballin
(144 U. S., 4), the court used the following language:
‘^Assuming, though without deciding, that the facts
which the Constitution requires to be placed on the
journals may be appealed to on the question whether
a law has been legally enacted, etc,” The United
146

THE STATE LEGISLATURES

States eases, therefore, hold that the journal is not
necessarily the best or conclusive evidence upon the
fact whether the bill was duly passed, but the courts
have not decided that where the Constitution re-
quires a specific entry in the journals, the courts may
not go to the latter to ascertain whether the entry has
actually been made. But the point thus insisted upon
in the North Carolina decision, and left open by the
United States Supreme Court, has not been so clearly
distinguished by the courts of other commonwealths.
In some of the states, whose constitutions require spe-
cific entries of votes, the courts have nevertheless held
that the enrolled bill is in every respect final and con-
clusive ; whereas in other states the broad rule is held
that the courts may go to the journals to ascertain
any omission whatever of constitutional requirements.
It is this latter broad principle which is gradually
being modified and partially abandoned. But the law
on the matter is still in a state of great confusion, and
even in individual commonwealths contradictory
opinions have been held by the courts.^ ^

One of the greatest abuses of American legislative
life has been the excessive amount of special and
local legislation. Not only is a just and scientific order-
ing of legal relations impossible under a system in
which individual cases and states of fact are con-
stantly dealt with, not on the basis of a general rule,

^ In some of the states where the broad doctrine of reference
to the journals is held, it is limited by the ruling that the failure
to comply with the constitution must appear afOrmatively from
the journal, and that where the latter is silent, the enrolled
bill cannot be impeached.

147

AMERICAN LEGISLATURES

but tbrougb exceptional legislation animated cMefly
by a desire to gain special privileges and protect spe-
cial interests. But this practice has also become the
chief stronghold of corruption in our legislative
bodies, and one of the principal means by which the
political boss and his machine make their power felt
by dealing out or withholding special privileges and
advantages. Any attempt at reform of legislative
procedure by means of constitutional provisions,
therefore, very naturally embraces the matter of
special and local legislation.

Legislative enactments are divided into general
acts and special or local acts. A general act applies
equally to all persons subject to the authority of the
state, or to a whole class of persons, defined according
to some essential characteristic, such as profession or
age. Thus a law prescribing certain safeguards to be
observed by physicians in surgical operations would
be a general statute, because it deals with all persons
who may undertake such operations, or if looked upon
as applying to surgeons only, it applies to them as a
class engaged in some particular profession. On the
other hand, an act is local or special when it applies
only to a specific locality, or to a group of persons, who
do not really form a separate class as far as the subject
matter of the special law in question is concerned.
An act exempting all physicians from the payment
of taxes would be considered a special act, because
though they are distinguished from other citizens in
matters of their profession, this distinction has no
bearing upon the general duty of paying taxes. Thus,
also, the imposition of a separate tax upon physicians
148

THE STATE LEGISLATUEES

would be a special law, but a license fee imposed
under tbe police power on a certain business or pro-
fession on account of its inherent nature, although it
may operate incidentally as a tax, will not be special
legislation. Common examples of local or special
laws would be acts incorporating a city or village, re-
mitting fines or taxes to individuals, allowing an indi-
vidual corporation an exemption from taxes, grant-
ing a divorce, etc.

A number of the state constitutions contain, in
some form or other, the provision that whenever a
general law can be made applicable, no special law
shall be enacted.^ The question here arises whether
this injunction is directed merely to the conscience
and discretion of the legislature, or whether it is the
duty of the courts to declare void a special law, when
they believe that a general law might have been passed
covering the specific case involved. The prevailing
opinion is that this matter must be left to the judg-
ment and discretion of the legislature, on the general
principle of the mutual respect due between coordi-
nate departments.^ But while this general principle
has been announced, courts have in individual in-
stances declared that where it is clearly apparent
that a general law is actually in existence which

^Alabama, Arkansas, California, Florida, Kansas, Maryland,
Missouri, ISTebraska, Pennsylvania, Texas, West Virginia, Vir-
ginia, Wyoming, Illinois, Colorado, and others.

^Owners, etc., u. People, 113 111., 315. Brown Denver, 7
Colo., 311. In some states (e, g.^ Missouri and Minnesota)
the constitution provides that the question as to whether a
general law could have beeu made applicable is to be judicially
determined.

149

AMERICAN LEGISLATURES

would cover the case, a special act must be considered
void.^ In states where the courts have taken juris-
diction, the result has been to make the legislature
rather careless of the constitutional provisions, leav-
ing it to the courts to determine whether a given
special act is valid. This determination can of course
only be made if actual litigation arises, which is
rather infrequent as often none but the beneficiaries
of a special act know or care about its existence. So
that in such states there is very much special legis-
lation in force which, if attacked in the courts, might
not be upheld.

Beyond this general provision, local and special
legislation is in nearly all constitutions forbidden
with respect to certain specific subjects. In some
states the number of subjects upon which special leg-
islation is prohibited runs up to as high as thirty
There is a great variety of such subjects, but the fol-
lowing are most commonly found : divorce, court pro-
cedure, county and township affairs, incorporation,
the rights and privileges of corporations, the remit-
tance of fines and other dues, the management of real
estate belonging to minors, the administration of
highways. In states where these provisions exist,
the above subjects can be dealt with only by general
laws, and the courts are bound to disregard any spe-
cial acts passed in connection with any of them.

/ In some states certain requirements are laid down
with respect to procedure in special and local legis-
/lation. Thus in Missouri, notice of such legislation

^Coulter V. Routt Co., 9 Colo., 263.

2 Thirty-three in California, thirty-one in Alabama.

150

THE STATE LEGISLATURES

must in every case be given to the locality or commu-
nity affected. In New York two-thirds of the elected
members must vote in the affirmative in order that
any appropriation for special or local purposes may
pass. The energetic and widespread agitation for
municipal home rule during the last decade has led
to the adoption in many states of constitutional
amendments prohibiting special legislation in munic-
ipal affairs and requiring the legislature to pass a
general municipal incorporation act. In New York
a peculiar system was adopted in 1894. The consti-
tution of that year provides that every bill concern-
ing any particular city must be submitted to the
mayor of the city affected, who within twelve days
shall return the bill to the governor, together with a
certificate stating w’^hether or not it has been accepted
by him. If the bill is returned '‘not accepted’’ it
may nevertheless again be passed by the legislature
and become a law if approved by the governor, but
the title shall in such case state that it was "passed
without the acceptance of the city.” The governor
retains his right to veto a bill even after it has been
accepted by the city.^ In Mississippi and Virginia no
special law can be acted upon until the Committee on
Private and Local Legislation has made a written
statement as to w^hether the object of the bill can be
accomplished under general law or by court pro-
ceeding.

We have already alluded to the principle of elassi-

^ This system was by no means satisfactory to the advocates
of municipal home rule. In the convention it was termed a
ridiculous result of so much effort.

151

AMERICAN LEGISLATURES

fication, and pointed ,ont that when it is based upon
essential characteristics, it preserves the character of
a law as a general act, although it may refer only to
a comparatively small class. The question arises, can
an act be termed general, when the class to which it
applies consists of but one individual or corporation.
In the states where the constitution forbids special
acts respecting municipal and local government, the
attempt has often been made to achieve the purposes
of special legislation by so classing the municipalities
that there would be classes composed of only one
eity. Thus, for instance, an act may be made to
refer to all cities having a population of over three
hundred thousand, there being only one city of this
size in the state. It has generally been held that
classification of this kind does not take away the
special and local character of the legislation at-
tempted.^ Especially is this true where the descrip-
tion is such that other towns could never by any
possibility come within it. Thus, for instance, a law
applying to cities which have a certain population
/‘according to the last census,’’ where there was only
one such city, was held clearly special and '*oeal.^

^ Devine v. Cook County, 84 111., 590. Anderson v, Trenton,
42 3Sr. J. Law, 486. Luehrman v. Taxing District, 70 Tenn.,
425. State ex reh Harris v, Hermann, 75 Mo., 340. In 1904,
a constitutional amendment was adopted in Illinois wMeh per-
mits the legislature to pass special laws for the government of
the city of Chicago. After passage by the legislature, all such
special laws must be submitted also to the vote of the people
of Chicago.

2 state ex tel, v. Judges, 21 Ohio St., 11, State ex rel* v»
met, 47 Ohio St., 90. ‘

152

THE STATE LEGISLATURES

Tlie system tlirougli whicli in Ohio municipal isola-
tion was attempted through evasive classification,
divided the eleven most important cities in the state
among two classes, subdividing these into grades.’’
Originally Cincinnati composed the first grade of the
first class, Cleveland, the second grade, and Toledo
the third. But when Cleveland distanced Cincinnati
in population, corporate powers continued to be
granted to it by its former description. The classifi-
cation attempted in Ohio was so clearly illegal, that
the Supreme Court overthrew the entire system of
municipal legislation, and forced the legislature, in
1902, to enact a general code of municipal govern-
ment.’^ The courts of Pennsylvania have held that a
city may reasonably be constituted a class by itself
because population is the best basis for the classifica-
tion of cities, and because it is not impossible that
other cities may grow sufficiently to come into the
class in question.^

Notwithstanding the constitutional provisions, local \
and special legislation still remains one of the chief \
sources of abuse and weakness in our legislative sys- /
tern. Such provisions, while they may check the evil,

^ State ex rel. Knisely v. J ones, et al., 66 Ohio St., 453.

2 Wheeler, et al., v. Philadelphia, 77 Penn. St., 348. But
when, in 1901, the machine caused the Pennsylvania legislature
to pass a bill giving it control of the Philadelphia Board of
Tax Revision, the Supreme Court held the act unconstitutional.
By its terms it was applicable to all counties which were then
coextensive with cities of the first class. The wording could
refer only to Philadelphia County and was held to come within
the constitutional prohibition, as by its very terms it could
never apply to any other county. 200 Pa. St. 629,

153

AMERICAN LEGISLATURES

cannot eradicate it, because there will always remain
eases which will have to be dealt with specifically. It
is therefore highly desirable that there should be
elaborated a qnasi-judieial procedure in which such
matters may be settled on their merits on the basis of
full hearings of testimony, and with proper notice to
all concerned.^ Referring to certain evils brought
on by constitutional limitations on special legislation
Governor Gage of California said in his message of
1901, ‘‘General laws are often passed which, in fact,
are only designed to benefit particular individuals or
localities, or to relieve special conditions, but, though
the special purpose be good, it often happens that the
very generality of the law impairs other and more
material rights. ... It is a matter to be regretted
that the constitutional provision against special and
local legislation is so far-reaching in its effects. While
the evil that was intended to be remedied and guarded
against . . . was a very serious one, still the new
evil of the enactment of general laws to fit special
cases is more serious, and it would be well for this
constitutional section to be so amended as to permit
necessary exceptions, thereby doing away with this
injurious method of legislative evasion.”

All states but two (Rhode Island and North Caro-
lina) give the governor a share in legislation by be-
f stowing upon him the veto power. This veto is
however not absolute, but merely suspensory. In
three of the states, Connecticut, New Jersey, Ver-
mont, the vetoed measure may become a law by being

^ See Chapter X for a discussion of the character of private
legislation-

154

THE STATE LEGISLATURES

repassed by a simple majority of a quorum. In
eight states a majority of all the members elected
may pass a bill over the veto. But in most states
a larger number than a majority is required, two-
thirds of those present being the most general rule;
in a few states it is three-fifths or two-thirds of the
elected members. If a bill having been sent to the
governor is kept by him for a certain time (from
three to ten days) without being returned or vetoed,
it becomes a law. If, however, adjournment inter-
venes, in eighteen states the bill will not become law
without the signature of the governor, so that he can
nullify it by merely ignoring its existence (pocket
veto). But in an equal number of states the consti-
tution provides, that if kept for a certain time after
adjournment ^ without being vetoed by the governor,
the measure shall become a law even without his sig-
nature.

The express limitations of legislative power with
which we have dealt show a strong and intelligent
pux^pose to grapple with the questions of legislative
inefficiency and abuse, and it cannot be doubted that
favorable results have been obtained by defining the
steps of procedure and limiting the power of special
legislation. But a complete solution of legislative
difficulties will not be looked for in this direction.
It must be sought in modes of action and arrange-
ments through which the positive efficiency of legis-
latures and of individual legislators will be increased.
How the sense of responsibility and self-respect, as

^ From five to thirty days ; in some states from three to ten
days after the begiimiiig of the next session.

155

AMERICAN LEGISLATURES

well as the mastery of legislative problems on the
part of legislators, may be developed, we shall con-
sider in subsequent chapters.

An important function of the state legislature is
the initiation of proposed amendments to the con-
stitution. In a number of state constitutions: as
those of Maryland, Maine, Minnesota, WSsconsin,
Virginia, New Hampshire, and New York, there is
provision made for taking the sense of the voters as
to calling a convention to prepare a new constitu-
tion, either at fixed intervals of time, or at the plea-
sure of the General Assembly; in all states but one,
provision is made for the preparation of amendments
through the instrumentality of the legislature. The
^ ^ consent of the governor is usually held unnecessary
' when amendments receive the requisite number of
votes in the two houses of the General Assembly.
These amendments, when proposed by the legislature
to the people and ratified by a majority of the popu-
lar vote east at the election at which they are sub-
mitted, become an integral part of the constitution.
Without that ratification, in all states except Dela-
ware, the action of the General Assembly in proposing
the amendments counts for nothing. In South Caro-
lina an amendment ratified by the electors will not be
valid unless it is also accepted by the subsequent
legislature.

The proposition of amendments may be made in
several ways. In some states, a majority vote of the
two houses is all that is necessary; for example in
Wisconsin, Arkansas, Missouri, North Dakota, and
South Dakota. In other states, a greater proportion
156 ■ '

THE STATE LEGISLATURES

of the two houses must favor the measure, two-thirds
being the prevailing number, as in Wyoming, South
Carolina, Tennessee, Texas, Utah, Washington, Cali-
fornia, Colorado, Georgia, Kansas, Louisiana, Maine,
Michigan, and Minnesota. In Mississippi, the two-
thirds majority must be cast for the amendment in
votes taken on three separate days. A three-fiftlis
majority is required in Maryland, Kentucky, North
Carolina and Ohio. Many constitutions require that
two successive General Assemblies vote in favor of
the same amendment, either with subsequent ratifica-
tion by popular vote, as in Pennsylvania, Oregon,
Nevada, New Jersey (in which state a special election
must be held on the amendment). New York, Indiana,
Massachusetts, Rhode Island, Virginia, Connecticut,
and Iowa; or without it, as in Delaware, in which
state an amendment is adopted when passed by a two-
thirds vote of each house in two legislatures succes-
sively. In Rhode Island, three-fifths of the people
voting at the same election must favor amendments
in order to ratify them, which fact makes it extremely
difficult to amend the constitution of that state. In
Tennessee, once in six years, amendments may be sub-
mitted to the people, after they have received a
majority vote at one legislature and a two-thirds vote
at the next subsequent session. In Vermont, in every
tenth session, two-thirds of the Senate may propose
amendments to the Lower House and, if it concur, the
next Assembly, and a majority vote of the people, may
ratify the amendment. In Connecticut, a majority
of each house in one legislature and two-thirds of
each house in the next are needed to propose amend-
157

AMERICAN LEGISLATURES;

ments to tlie people. In Massachusetts the proposed
amendment must receive the affirmative votes of a
majority of the senators and two-thirds of the House
of Representatives during two successive legislative
sessions.

CHAPTER V

LEGISLATIVE COMMITTEES

When from the study of constitutional limitations
we turn to consider the actual organization and pro-
cedure of the state legislatures, we are confronted
with a frequent lack of correspondence between the
constitutional and legal requirements on the one
hand, and the methods actually pursued on the other.
In no department of the government is there such a
frequent departure from the normal rules laid down
by constitutional or statute law. The courts are ex-
ceedingly punctilious about matters of form in their
procedure, and administrative officials, too, are care-
ful to observe the proper formalities in their actions,
so as not to give rise to legal doubts of their validity.
But the supervision of the courts does not embrace
the details of legislative procedure beyond the very
general features pointed out in the last chapter, and
even to the latter, judicial revision is sparingly ap-
plied. It is not considered wise to question the valid-
ity of legislative acts even though some irregularities
are discovered in the process of enactment. As we
have seen, most of our courts accept as conclusive
the certification of the presiding officials, and none
159

AMERICAN LEGISLATURES

of them go back of the journal, no matter how much
these two formal expressions of legislative action may
be contradicted by oral or written testimony. On ac-
count of this principle and on account of the personal
immunity of members of the legislature, the actual
occurrences in legislative assemblies and committees
are not ordinarily subject to judicial action or control.
The observance of the rules of procedure is therefore
very largely dependent upon the will and the purposes
of the majority in the legislative body. The leaders do
not often find it difficult to arrive at an understand-
ing with the members of the minority under which
legislation can be carried on largely by common con-
sent. This lax procedure has been encouraged
through the general apathy of the people towards the
state legislatures. Not greatly interested even in the
larger issues before these bodies, the public pays no
heed whatever to matters of legislative procedure,
the bearings of which can be understood only by those
intimately familiar with the rules of parliamentary
law. So it has often come about that in states where the

majority party has a strong organization or machine,
the various forms of procedure have been treated as
fictions, and the legislative body has automatically
registered, in the last days of the session, and with a
downright disregard of rules, those pieces of legisla-
tion which the party managers had agreed upon.
Thus it is very common that the full readings of Bills
required by the constitution are entirely dispensed
with, that the committee action on certain bills is
treated as a pure formality, that objections and de-
mands for roll-calls are ignored, and even that votes,
160

LEGISLATIVE COMMITTEES

wLich in fact were insufficient, are recorded as satis-
fying tlie legal requirements.

It is necessary to bear in mind this frequent dis-
parity between tbe rules and actual procedure, be-
cause the politician often looks upon the rule, not as
a restricting norm, but as a flexible instrument to be
bent this -way or that as his purposes may require.
This fact makes it exceedingly difficult to give a
general account of legislative organization or pro-
cedure which will not be purely formal and artificial.
The standing rules vary sufficiently in the different
commonwealths to make their study distractingly in-
tricate. When to this are added the various methods
and subterfuges by which these rules are evaded or
made to serve purposes other than those for which
they are plainly intended, the subject resolves itself
into the treatment of every motive, method, and trick
of political action. We cannot here hope to deal at
all exhaustively with these matters; all that can be
attempted is to point out the general character of the
legal organization and action of legislative bodies, to-
gether wdth the principal exceptions thereto in indi-
vidual commonwealths ; and to follow this by a study
of the main lines of extra-legal and illegal modifica-
tion which are encountered in the various legislatures.
In those states wffiich are comparatively free from
machine dictation, and in wffiich powerful interests
do not w^eigh heavily upon the legislatures, we may
expect the normal forms of procedure to be more care-
fully adhered to. But as to the machine-ridden
states, it is difficult to avoid the conclusion that in
them government §y discussion has been frequently

AMERICAN LEGISLATURES

reduced to au empty form ; and with a cynical irony,
the legal methods of procedure have been turned to
alien purposes, so as to make the legislative body a
dumb instrument for registering the arrangements de-
sired by the organization.

*; The state legislatures are in general modeled on
Congress ; or it might be more correct to say that,
though the descendants of bodies which antedated
Congress, they have naturally, as the Federal Legis-
lature has become more and more important, been
profoundly influenced by the methods of procedure
there evolved. The lieutenant-governor, as presiding
oiScer of the Senate, occupies much the same position
as the vice-president, although in individual instances
he has relatively more power. The legislative speaker-
ship has at some distance followed the development of
the centralized authority in Congress. The use of a
complicated committee system, and the governor’s
veto complete the analogy. Within these limits, how-
ever, wide variations occur. The committees in the
Senate are commonly appointed by the lieutenant-
governor. In a few states,^ they are elected by bal-
lot of the senators. In the more numerous house the
method of appointment by the speaker is generally
in use. Although committee positions often enough
bestow very little power, the early part of a legisla-
tive session is rendered interesting to the members
chiefly by combinations and speculations about the
matter of committee assignments. The time of ap-
pointment is frequently delayed for various reasons ;
either because the party managers desire to get the
1 JS. g.f Vermont, Wisconsin, Connecticut, Illinois.

162

LEaiSLATIVE COMMITTEES

situation well in hand before completing the actual
organization of the House, or because of real diffi-
culties in adjusting the desires and activities of new
members,^ or for some other purely political reason.
The ideal method according to which men are placed
on conunittees with the business of which they are
especially familiar, has to give way in many cases to
the purposes and plans of the leaders in power with
respect to important subjects of legislation. Com-
mittees to which such bills are to be entrusted are
composed with great care, unless the organization
considers itself strong enough to treat the whole com-
mittee system as a pure formality. An example of
juggling with the committee system was afforded in
the Illinois Senate in 1903. The three committees
through which most of the political business was to
be transacted were filled entirely with organization
Republicans, and a few Democrats. The opposition
Republicans were put principally upon such appar-
ently important committees as Railroads and Corpo-
rations, both of which, however, did not meet during
the entire session.

It is a notable fact that during the last few
decades both the number of committees, and the aver-
age of membership, have increased rapidly. As an
example, we may cite the case of Illinois. In the
twenty years between 1877 and 1897, the number of
House committees increased from forty to fifty-eight,

^ Thus in Illinois, in 1905, the House committees were ap-
pointed as late as March 6. The House contained ninety new
members, many of them able men, not easily subjected to the
ordinary organizing process.

163

AMERICAN LEGISLATURES

and the average membership from twelve-and-a-half
to eighteen-and-a-half ; so that the total number of
committee positions was more than doubled, rising
from 504 to 1062. In 1877, each member was, on the
average, on three committees ; in 1897, on seven. The
largest committee in the former year had seventeen
members, in the latter thirty-five. The Senate went
even beyond this. By placing upon the Railway Com-
mittee forty-one members, or all but ten of the
senators, the organization reduced the whole commit-
tee system to a sham. A similar increase in numbers
is noticeable in more than one-half of the states. It is
due, on the one hand, to the desire of members for
opportunities to gain distinction and influence; on
the other, to the discovery that large committees lend
themselves more readily to the uses of the political or-
ganization. This increase in committee membership has
been most noticeable in states where the party organ-
ization is strong. Committee positions constitute a
cheap kind of patronage, which helps the managers
in paying certain political debts. Moreover, in mak-
ing the committee so large that it becomes unwieldy
and helpless, the rule of the party manager is rendered
more efficient. The true work of a committee can of
course be best done By a small group of men who may
gather around a table, and engage in an informal dis-
cussion of the business in hand. To make of it an-
other assembly, even though it be considerably smaller
than the House itself, is usually to defeat the possi-
bility of efficient action. When such committees are
kept from meeting or have their opinion practically
ignored by the independent action of their chairmen,
164

LEGISLATIVE COMMITTEES

the cynicism of the political manager reaches its
climax. Occasionally, the motive of creating large
committees in certain lines of legislative business has
been to strengthen some particular measure or group
of bills by thus enlisting from the start the influence
and interest of a considerable number among the
members.^- In large committees it is a very common
practice to entrust the discussion of particular meas-
ures to sub-committees. As these are selected and
controlled by the committee chairman, this method
is frequently used for the preparation of measures
favored by the organization but of such a character
as not to commend them to the entire committee.
Much of the worst legislation has originated in this
manner, and the so-called ripper’^ bills and
‘‘strikes’’ quite frequently owe their legislative
progress to the sponsorship of some sub-committee,
except in cases where the organization is so strong
that the individual chairmen can entirely dispense
with committee action.

The importance of individual committees depends
very largely upon the particular business which occu-
pies the chief attention of any legislative session.

1 Among the states which have very large House committees
are the following: Illinois with an average membersliip of
nineteen; New York vrith an average of eleven; Pennsylvania
with twenty-live; North Carolina with five committees over
thirty; Alabama with seven of nineteen and over. Very small
committees are foniul in Michigan, averaging three-and-a-half
in the Senate, and five-and-a-half in the House ; Wisconsin,
averaging seven and two. In Massachusetts the important com-
mittees were in 1890 enlarged to a membership of fifteen, in
order to give places to the followers of the speaker of that day.

165

AMEEICAN LEGISLATURES

But on account of tlie forces which we have already
noted, this is not always true, as committees which
would naturally be important may never be entrusted
with the business which their name implies. Where
more normal conditions prevail, the prominence, e.
of agitation for primary elections, will lead to the
appointment of a strong committee on Privileges and
Elections, while the discussion of railway taxation
will enhance the importance of the committee on
Finance and Taxation. But there are certain com-
j mittees which on account of the permanent import-
I ance of the business entrusted to them generally play
\ ^ a paramount role in the legislative session. In many
\ legislatures the committee on Rules has acquired
i great importance through its control of the legislative
J business during the latter stage of the session.^ In
the majority of the states, however, this committee
has not yet followed in the footsteps of its congres-
sional namesake, and confines itself to the bringing
in of the standing rules and of occasional modifica-
tions.^ The committees dealing with state revenue
and expenditure are naturally of constant import-
ance; they are designated variously as committee on
W'ays and Means, Appropriations, or Finance; in
some states there are in each house several committees
dealing with finance. The committee on Contingent
Expenses may become important on account of the

^ This is the case especially in Illinois and New York, in the
latter of which states the presiding officers of both houses are
members of the respective committees on Eiiles.

2 No standing committee on Rules exists in Pennsylvania,
New Jersey, and Wisconsin,

166

LEGISLATIVE COMmTTEES

indefinite nature of the appropriations which it may
originate, and the consequent ease wdth wiiich it may
be made to subserve political purposes. The defeated
candidate for speaker in the House is often .made the
chairman of the financial committee. A committee
which is quite uniformly important is that on the
Judiciary. As all bills involving a change of the
Common Law, as well as all amendments of the ex-
isting general statutory law are referred to this com-
niittee, it has usually the largest number of bills to
consider.^ In some states there are two or more com-
mittees to which bills relating to changes in the gen-
eral law may be referred. Thus New York has com-
mittees on the Judiciary, on the Code, and on General
Laws ; the latter being an overflow committee. Massa-
chusetts, in addition to separate committees on the
Judiciary, has a joint committee on Probate and
Chancery. It is a practice in some states to constitute
the delegation from the most important city, a com-
mittee on the affairs of that municipality. This
method of dealing with metropolitan affairs prevails
in California and Colorado.^ Kansas, on the other
hand, has five committees dealing with municipal
affairs.

The control of the order in Avhich various measures
shall be taken up by the legislature, and the deter-
mination of any preference to he accorded to a par-

^ Tims in "Wisconsin in 1905, four times as many bills were
referred to tliis committee as to any other.

2 In the California Assembly, the San Francisco delegation ;
in the Colorado Senate, the senators from Arapahoe County
(Denver).

167

AMERICAN LEGISLATURES

fticnlar bill, is in the hands of the committee on Rules,
in those states in which this committee has been fully
; developed. In a few states the houses, a short time
before the end of the session, create a sifting com-
mittee,’^ which takes charge of all pending bills, ex-
cept appropriation bills, and selects those which are
to be considered by the respective house. . In Iowa,
a sifting committee has often been used by the houses
of the legislature. When first used in 1870, it was
composed of the chairmen of the standing committees,
but more recently the composition has been different,
the speaker of the House, or the presiding officer of
the Senate, usually naming the members. The com-
mittee is appointed toward the end of the session
when the pressure of business has become bewildering
to the ordinary member. In 1898, such a committee
was created in the Senate three days before adjourn-
ment. All bills were referred to it, and it selected
sixteen which it reported to the Senate. In 1894,
a House committee was appointed about a week be-
fore adjournment which selected forty-seven mea-
sures, out of all which had been submitted to it.^
More generally this function of arrangement and
selection is performed by a so-called ‘‘steering com-
mittee,” composed of representative members of the
dominant party. This committee may be elected by
the party caucus or it may be composed informally
of the actual leaders in the legislature, —the chairmen
of the most important committees and other men
actually enjoying to the largest extent the confidence

^The Nebraska Senate also kas a sifting committee of seven
members elected by tlie Senate.

168

LEGISLATIYE COMMITTEES

of the members of the dominant party. The action
of such informal committees is often the determining
factor in legislation, because when the closing weeks
of the session have arrived, comparatively little im-
portant business has usually been accomplished. The
sifting and arrangement of matters to be brought
before the legislature, when conscientiously per-
formed, is a matter of no small difficulty, as it pre-
supposes a thorough command of the whole field of
legislative action. Where the organization is strong,
this method of course resolves itself generally into
the advancement of a group of measures determined
by the party leaders, and the utter ignoring of every-
thing else, unless some measure should be suddenly
brought into prominence through powerful news-
paper agitation or the pressure of strong interests.

When legislative business is entrusted to a com-
mittee, it is not customary to bind the latter by direct
orders or instructions designed to control its action.
But in general the matter is left to be dealt with by
the committee at its discretion.

A larger percentage of bills is reported on in
state legislatures than in Congress. The rules of a few
legislatures^ require that every measure committed
must be reported back wdthin a certain time before
the end of the session. It is in the states in which
the political organization is strong that the percentage
of bills smothered in committee is largest. Thus
during a period of years in Illinois, on the average
about thirty per cent, of the bills referred did not

^ Massaclmsetts (joint rules), Rhode Island (Senate rules),
Maine, Yermont, and New Hampshire (House rules).

169

AMEEICAN LEGISLATURES

issue again from the committee chamber. While the
legislature does not continuously supervise the com-
mittee action, it is nevertheless a frequent practice
for bills or reports which prove unsatisfactory to be
recommitted with special instructions. When a com-
mittee reports unfavorably on a measure, there is
generally little hope of its passage ; and it frequently
^happens that every adverse report made throughout
/the session is followed. The burden of proof arrayed
against a measure by such action of the committee is
so heavy that it can he overcome only if the discus-
; sion on the floor brings out new facts of first-rate
' importance, or if a powerful popular agitation is set
on foot. It is the usual practice to allow a committee
to make but one report,— that upon which the major-
ity of the committee agree. In certain states,^ how-
ever, the right to express their views in a report and
to suggest alternative measures is guaranteed to the
minority of a committee by the rules. The practice
in Connecticut is to consider the majority report first;
if it is accepted the minority report is held to be
rejected without further action. Should, however,
the majority report fail of acceptance, that of the
minority is at once taken up and considered.

In legislatures in which committee action has not
degenerated into a mere formality, the work of the
leading committees is very arduous, and requires the
constant attention of their members after legislative
business has gotten well under way. New members
need to learn a great many facts and principles, for
the knowledge of legal arrangements and of actual
Conneetieut/ Wisconsin.

170

LEGISLATIVE COMMITTEES

conditions that is required for effective committee
work is very extensive indeed. It is a most unfor-
tunate fact that industry and conscientious watch-
fulness in committee work can in the nature of things
receive so little rew^ard. A committee member may
by many days of hard work succeed in exposing some
attempted raid on the treasury or grab of public
rights. But his chief reward will be in his own con-
science, because few people will know of, or care for,
his achievement. On the other hand, his action will
gain him the deep hostility and bitter opposition, of
the powerful interests crossed by him; their purpose
thereafter wull be totally to destroy his influence, so
that he may find himself unable to accomplish the
things which his constituents are expecting of him.

The influence which the chairman of a committee
may exercise over its deliberations and decisions is
very great. His experience and knowledge of the
law and precedent give him a natural ascendancy
in his circle. Through intimate association with other
committee chairmen and wuth the speaker, he is en-
abled to view the legislative business in its more
general relations. If he is a tactful man he will often
be able to disarm opposition to an important measure
by allowing full freedom of investigation and con-
sideration, and refraining from the use of the parlia-
mentary force at his disposal.^

The joint committee of both houses of the legis-

^ The chairman of the Committee on Bailroacla in the Wis-
consin Senate in 1905 thus succeeded in gaining practically
unanimous support for the railway rate commission bill, which
was bitterly opposed in its initial stages.

171

AMEEICAl^ LEGISLATUEES

lature as a method of facilitating legislative business
is used extensively in New England, but plays a
minor part in other parts of the Union. Through-
out the Middle, Southern, and Western states,^ the
use of the Joint committee is quite generally confined
to formal occasions, such as counting the vote for
governor, notification of senators-elect, visiting state
institutions, etc. Thus the use of the Joint committee
in the greater part of the Union is for the most part
special, only rare instances of Joint standing com-
mittees being found. But in some of the Northeastern
states, where quite distinct conceptions of the legis-
lative function prevail, the larger proportion of the
business transacted in the subdivisions of the legisla-
ture takes place in Joint committee as may be readily
seen from the following table ;

state

Xiiiiiber of
Joint

Number of
Senate

Number of
House

Connecticut

Committees Committees

OQ 24 standing Pi
• • • 14 select ^

Committees

4

Rhode Island . . .

... 7

13

13

Massachusetts . .

04 . 31 standing Pi

• • • 3 optional ^

7

Vermont .......

... 12

20

23

New Hampshire

... 3

23

35

Maine

OC 32 standing 0

4 select ^

6

^Except in New Jersey, where there are thirteen joint com-
mittees. The system here used is to intrust the affairs of the
various state institutions to such joint committees. Delaware
has a joint committee of Finance. Wisconsin has joint com-
mittees on Claims, on Charitable and Penal Institutions, on
Printing, and on Pish and Game.

172

LEGISLATIVE COMMITTEES

Thus in the states of Connecticut, Massachusetts
and Maine, the joint committee is the rule rather than
the exception. It is by no means surprising that this
institution should find its widest development in New
England. The compactness of interests, the public
attention bestowed on legislative matters, the legacy
of political experience, the ultra-practical type of the
Yankee mind, as well as the comparative smallness ^f
committees, and the traditional conservatism and re-
tention of accustomed forms, serve to render this field
a favorable one for the joint action of legislative com-
mittees. In the large industrial states, whose political
organizations are centralized and dominated by ma-
chines, the joint committee receives but scant oppor-
tunity for employment. The power of the organiza-
tion has been such as to minimize the importance of
the ordinary committee system, and legislative action
becomes largely mechanical, responding to the pres-
sure of the hand that grips the organization lever. It
is far more difficult to manipulate a joint committee,
in which the public is interested and whose hearings
are attended by all persons concerned, than to use the
system of separate committees in such a manner as
to defeat the public interest, even though maintaining
the appearance of careful consideration and normal
procedure. Among the great practical advantages of
the joint committee system are the saving of time
through avoiding duplication, the lessening of the
tendency toward the mutual shifting of responsibility,
a strong educative influence on the newer members,
the increase of efficiency due to intimate contact of
men of both houses and of varied experience, the
173

AMEEICAN LEGISLATURES

closer scrutiny and more intensive investigation of
legislative problems. Not the least advantage comes
from the fact that the influence of the committee
members from the Upper House tends to act as a
counter check upon the over-powerful domination of
the speaker over Assembly committees.

The potential influence of committee hearings to
bring to bear upon legislative action the opinions and
desires of the public in a truly democratic manner,
ha^ scarcely been realized outside of the Common-
wealth of Massachusetts. In that state, committee
hearings are a very important part of legislative
action. Notice of all hearings is given in the public
press, and the committee meetings are well attended,
not only by people who have an ax to grind but by
citizens of the state who interest themselves in legisla-
tive reforms. All testimony brought before the com-
mittees is carefully weighed; in fact, the legislature
and its committees assume rather a judicial attitude.
Petitions are brought before them, testimony is given,
arguments are made, and they in general decide the
matter impartially upon the basis of all these con-
siderations. The fact that the legislature meets in
the metropolis of the state, where those interested in
legislation can watch it without special trouble or ex-
pense, is a favorable factor; but the General Court of
Massachusetts is in all respects nearest the people,
and most responsive of any American legislature to
intelligent public opinion.

The practice has recently arisen of allowing com-
mittees of the legislature to sit in the interval between
legislative sessions. The purpose usually has been
■ 174

LEGISLATIVE COMMITTEES

to acquire tliroiigli investigation a sufficient basis of
fact for prospective legislative action. The holdover
senators form the personal link between the legisla-
tive session appointing the committee and that to
which it is to report. Considering the frequency of
extra sessions in most states which have a biennial
session, we note a certain tendency toward continuity
of legislative action, of wdiieh the inter-session com-
mittees are another indication. Prominent examples
of such coirnnittees are the Stevens committee
(1904), for the investigation of gas prices in
New York, which did exceedingly careful and
important work; the Committee on Traction In-
terests appointed in Massachusetts in 1905 ; and
the famous Insurance Investigation Committee ap-
pointed in New York in the same year.^ This activity
of a legislative committee of inquiry in subjecting a
certain industry or condition to a searching scrutiny,
uncovering abuses, putting aside shams, and ariuving
at a sound basis of fact, is certainly the only safe

^An important investigation was undertaken by the Brake
committee o£ the Ohio Senate in 1906. In inquiring into the
affairs of Cincinnati, the committee caused the return to the
public treasury of over $200,000, which had been given as
gratuities to treasurers, by banks favored in the deposit of
Hamilton County funds. The work of the committee was
blocked, and its powers of action emasculated by a remark-
able decision rendered by a ;iudge of the court of common
pleas, who took the ground that the investigating committee
was an illegal body, as the constitution of Ohio gave the legis-
lature no authority to appoint a commission with power to
take testimony as to alleged corruption in Hamilton County
and to compel the attendance of witnesses.

175

AMERICAN LEGISLATURES

preparation for legislative action upon complicated
industrial and financial matters. As the powers of
sucli a committee to demand the production of evi-
dence generally transcend those possessed by a grand
jury, this method bids fair to become very useful for
the purpose of dealing with a wide-spread corruption,
backed by powerful interests.

The federal courts, it is true, have shown a tendency
to limit the power of investigation. They hold that,
while the power of the English Parliament to punish
for contempt cannot be limited by any judicial pro-
cedure such as habeas corpus^ the powers of Con-
gress, being delegated, are not of this unlimited na-
ture, and that Congress has not succeeded to the
powers of Parliament in this matter.^ Congress has
no authority to inquire into the private affairs of a
citizen, except where the examination is necessary
in such a quasi-judicial proceeding as a contested elec-
tion, the impeachment of officers of the government,
or the trial of one of its own members for disorderly
conduct. The Supreme Court has, however, more re-
cently decided, in the case concerning the charges
against senators in connection with the tariff on sugar,
that ‘^Congress possesses the constitutional power to
enact a statute to enforce the attendance of witnesses,
and to compel them to make disclosures of evidence
to enable the respective bodies to discharge their legis-

^Kilbourn v, Thompson, 103 U, S., 168. Councilman v.
Hitchcock, 142 TJ. S., 547. Interstate Commerce Commission
V. Brimson, 154 U. S., 447. A Congressional investigation into
the affairs of the Central Pacific Railroad Company was smoth-
ered in the Pacific Railroad Company case. 142 Fed. R., 241.

176

LEGISLATIVE COMMITTEES

lative functions/’^ The courts of tlie states also do not
consider tlie power of legislatures to imprison for con-
tempt unlimited and entirely exempt from judicial
interference.^ But they hold either that legislatures
are entitled by the common parliamentary law to com-
pel the attendance of persons within the state as wit-
nesses in regard to any subject in which they have
power to act," or they are liberal in their interpreta-
tion of pov/ers granted to the legislature by the state
constitutions;^ In order that a committee may exer-
cise this power, an investigation must however be con-
nected with intended legislation, and not merely be
instituted for the purpose of using a certain expose
for political advantage. But where a basis for legis-
lation is sought in good faith, either house may com-
pel the attendance of witnesses for legislative pur-
poses.” In some states, e.g., Marjland, the power to
summon witnesses for legislative purposes is expressly
granted by the constitution. The Supreme Court of
Wisconsin has pronounced in a dictum that the rule
of law excusing a person from giving evidence inerim-
inating himself, has no application in legislative
investigations.®

On account of the comparatively large membership
of the Lower House in the state legislatures, as well

1 hi re Chapman, 166 P. S., 661.

2 Burnham v. Morrissey, 14 Gray, 226. (Mass., 1859.)

3 Ex parte McCarthy, 29 Cal., 395.

^Wilckens v. Willett, 4 Abbott’s Decisions, 596. (N. Y.,

1864.)

5 People ex rel. Keeler v. ^.leDonald, 99 N. Y., 463.

6 hi re Falvey, 7 Wis., 630.

177

12

AMERICAISr LEGISLATURES

as the inexperience of the majority of its members,
it is natnral that a large amount of power should have
been concentrated in the hands of the speaker.
Through his power of making committee appoint-
ments, of distributing the legislative business, of guid-
ing the discussion on the floor, and, with the aid of
the Committee on Rules or through an informal steer-
ing committee, of controlling or at least influencing
the order of business, and determining the opportu-
nities to be accorded the backers of any particular
measure, the speaker may build up a powerful influ-
ence, if he unites technical knowledge with political
tact. The chances for the development of a strongly
centralized parliamentary authority in the state legis-
latures are of course less favorable than they have
been in Congress during the last two decades. Yet in
some of the larger states, like New York, Pennsyl-
vania, and Illinois, gavel-rule has at times been carried
out with more lack of consideration for the political
opposition, and especially for the minority in the
ruling party, than has ever been exhibited in Con-
gress. While the Congressional speaker has never
been accused of systematically working in alliance
with corrupt interests, such connection has at times
been established in some of the states. In Pennsylvania
it was openly acknowledged, with the cynical frank-
ness of the former political masters of that common-
wealth. The New York Assembly has perhaps ap-
proached most closely to the model of Congress, and
under strong and able speakers like Nixon there has
been a concentration of parliamentary activities,
and a guidance of parliamentary procedure through
178

LEGISLATIVE COMMITTEES

the Committee on Rules, closely approaching the situ-
ation in Congress. But in the ordinary legislatures,
parliamentary centralization is not carried to such an
extent because it is not necessary. The membership
is smaller, the amount of business less distracting;
there can be more free discussion, and more individual
independence of the members. In these legislatures,
the speaker owes what influence he may have to his
personal experience and ability, rather than to the
structural factors involved. It occasionally happens
that even in those states in which the organization is
most effectual, a successful revolt may take place.
Thus in the Illinois Assembly of 1903, the power of
the speaker was overthrown by the minority Repub-
licans and the Democrats, when the famous traction
bill of that year wms up for consideration.

The subject of conference committees in state legis-
latures does not present many difficult problems, for
the cardinal weakness of the legislatures of our com-
monwealths lies rather in their careless habit of un-
discriminating assent to the larger part of the mea-
sures presented to them, than in any tendency to obsti-
nate disagreement between rival chambers. The habit
of unanimous consent has fastened itself so strongly
upon many of our state legislatures, that the arbitral
function of the conference chamber is resorted to only
upon rare occasions. The general weakness of the
party system in our local lawmaking bodies, combined
with the usual tacit understanding between the oppos-
ing machines, as well as the infrequence of opposing
control in the two houses in the present day of sec-
tional majorities, assure the flood of legislation a
179

AMERICAN LEGISLATURES

passage free from the friction which necessitates in
Congress the compromising agency of the Committee
of Conference. When occasions arise for the caUing
of a conference committee, the practice most widely
in use requires that upon the request of one house
accompanied by its appointment of a committee for
the purpose, the other chamber must send a similar
committee of an equal number to state its position
and seek a via media of common agreement.^ The con-
ference committee, being by its very reason and nature
a special institution, all minor questions of the time
of meeting, committee procedure, etc., are left almost
altogether to the option of the committee itself. It
is a quite general and intrinsically necessary practice
to provide that a conference report cannot be amended
or altered. Usually, the halves of the committee re-
port to their respective houses, but Massachusetts
provides for a joint report to the house requesting the
conference. In Ohio the organization phalanx so
long in control of state politics established joint rules
which made legislative disagreement on matters of
detail almost impossible. It was provided that a com-
mittee of conference should be appointed whenever
any disagreement of opinion should exist between the
two houses ; that in case this original committee should
disagree, another should succeed it; that if either
house disagreed to a conference report, it should re-

^ The Tisual number is three representatives from each house;
sometimes no number is provided in the rules (Massachusetts,
Maryland, California); some states require that the conferring
members represent the majority of their house (Massachu-
setts), others by lack of provision allow minority representa-
tion (Pennsylvania).

180

LEGISLATIVE COMMITTEES

quest a new meeting of the committee, to wLieh re-
quest the other house should accede. While such
ample provisions were made, the legislative practice
was so responsive to organization demands that the
compromise conference was after all of rare occur-
rence. The legislature of Ohio, like many of its sister
bodies, found working agreements between parties
and houses of so easy making, that no rough edges
were left to be chipped off by the conference chisel.
An extreme example of the workings of the conference
committee in times of legislative disagreement was
afforded in Pennsylvania in 1883. The state govern-
ment was divided between the rival parties ; the gov-
ernorship and House majority being Democratic,
while the Senate was under Eepubliean control. As
the state thus stood in the doubtful column, with a
national political crisis in view, the question of party
control through reapportionment became of vital im-
portance. The two houses being in a hopeless dead-
lock during the regular session, an extra session fol-
lowed on its heels. At this point the conference com-
mittee became the battlefield of the opposing forces.
As a result of many moves and counter-moves, the fol-
lowing rulings took their places among the decisions
and precedents of the Pennsylvania legislature,

1. That the conference committee should have
power over the whole bill committed to its care.

2. That the House by special resolution might au-
thorize such a committee to consider a bill not pre-
sented at that session.

3. That final disagreement upon a conference com-
mittee report operated as a discharge of the commit-
tee without further action of the House.

181

AMERICAN LEGISLATURES

4. That the committee once discharged was not sub-
ject to instructions.

It must be remarked that these ultra-liberal rul-
ings were made under extraordinary circumstances.
Their value as examples is conditioned by the fact
that they probably mark the widest limit of confer-
ence power. They cannot by any means serve as a
type of the usage in the normally governed legisla-
ture. The older practice of compromise through con-
ference still plays an important part in our Congres-
sional legislation. The state legislatures have failed
to follow in the path of the national body/ largely
because of the shifting of main political interest from
the local centers to the national one. Now that party
warfare carries on its chief manoeuvres in the Con-
gressional forum, the inner state struggles no longer
take the form of inter-house conflicts. The confer-
ence compromise however is still a living force. The
spirit exists though the form decays. New England
finds the joint committee a more efficient instrument
than the committee of conference. The tendency les^
strong elsewhere works out in the inner organization
of the party rather than in the outer organization of
the legislature. But this leaves much to be desired.
In the growing movement toward more careful and
less prolific legislation, the conference, like the joint
committee, may come to be an important factor in in-
creasing the efficiency of our legislatures.

^Although occasionally, as in the Illinois extra session of
1906, a real conflict occurs and very important matters are
decided in conference.

182

i

CHAPTEE VI

PEOCEDURE IN' STATE LEGISLATURES

Legislative procedure among our many common-
wealths, while subject to infinite modification and
diversity of detail, most generally follows along the
line of a certain recognized practice common in sub-
stance to almost all our state legislatures. The first
step in the process of actual lawmaking occurs when
the bill is presented to the house, endorsed with the
title and the name of its sponsor. In usual procedure,
the introduction of bills takes place at the time ap- ’!

pointed in the order of business for the day. A mem- i

her rising in his place and obtaining recognition, begs :

leave to introduce a bill. This being tacitly granted, ;

the bill is sent by a page to the clerk who reads the bill |

by title, upon which the officer presiding announces !

the first reading of the bill. In most legislative bodies i

a second reading and announcement immediately fol- *

low. However the constitution and usage in some |

states call for separate readings on different days. '

Upon the second reading of the bill, it is assigned to
such committee as may seem appropriate, in the *

House of Eepresentatives or Assembly by the speaker, !

in the Upper House by the lieutenant-governor or

183 i

AMERICAN LEGISLATURES

president of the Senate. At times reference to some
particular committee is made at the request or sug-
gestion of the member introducing the bill. After
due consideration, if a favorable view is taken, the
committee reports the bill back to the house, together
with its recommendations thereon. If unfavorable
the committee rarely reports.^ Sometimes the com-
mittee reports a recommendation simply for passage,
indefinite postponement, reference to some other com-
mittee, etc. ; or, in other instances, it may report vari-
ous amendments or make a detailed statement. In
case of the report failing to satisfy the house, a motion
may be passed to recommit, with or without instruc-
tions. A bill may be recommitted at any time pre-
vious to its passage. The local legislatures have not
to any great extent followed their national prototype
in a frequent use of the Committee of the Whole.
While it may be convened upon the request of a cer-
tain portion of the members present (usually one-
sixth), its use is of comparatively rare occurrence.

The bill, once reported, is usually placed upon the
calendar for the succeeding legislative day under the
title of ‘‘Bills ready for engrossment and third read-
ing.” At this stage the bill is subject to general dis-
cussion and amendment on the floor. If the bill is
by the house ordered to be engrossed and read a third
time, the clerk passes it over to the proper officials
for engrossment. This function is ordinarily per-
formed by the engrossing and comparing clerks, whose

^ All matters referred to committees mast be reported on in
Massachusetts, in the Senate of Rhode Island, and in the
Lower House in Maine, Vermont, and New Hampshire.

184

PEOCEDUEE IN STATE LEOISLATUEES

duty it is carefully to prepare the engrossment and
make certain that it is correct in phraseology and
exactly similar to the original bill as amended. Their
work is usually cheeked and supervised by a Com-
mittee on Engrossed Bills. The usage in many states
permits that whenever a bill, fairly written or printed
without interlineation or erasure, is without amend-
ment ordered to be engrossed for a third reading, it
may be reported to the house as the engrossed bill.
The neglect of enforcing the provisions for careful
examination and supervision of engrossment and en-
rolment, at times permits the creeping in of error and
misconstruction, through careless or unscrupulous
action of subordinates. After engrossment the bill
goes to its third reading, on which occasion it receives
the final test in the house prior to passage. The
progress of the bill may be hastened by its being
made a special order for a certain day. This object
is also facilitated by the widespread use of the sus-
pension of the rules, particularly in the final days of
the session. Once having successfully accomplished
its passage through one house, the bill is taken to the
other chamber together with a special message an-
nouncing its passage. Here, having been read twice
by title, it is referred to the appropriate committee,
and treated in a fashion similar to that of bills origin-
ating in this house. Upon decisive action being taken,
a message is sent to the originating house announcing
the fact of concurrence or amendment.

Should the bill receive favorable action in both
houses, the concurring body returns the bill to that in
which it originated, where it is given into the charge

185

AMERICAN LEGISLATURES

of tlie enrolling clerk, wko makes a proper copy of
tke same. It is the function of the Committee on En-
rolled Bills to supervise the making of the new copy
and the comparing of it with the engrossed bill.
When the copy has been made in a satisfactory man-
ner, the members of this committee report the bill
back to their house. The engrossed bill remains filed
with the clerk of the originating house j while the en-
rolled bill receives his endorsement, as well as the
signatures of the presiding officer of each body. Then
the clerk sends the enrolled bill to the governor for
his approval or veto. In some states, the bill may by
joint resolution of the two houses be recalled from
the governor for reconsideration. The approval of
the Executive is commonly expressed by his signature,
and is followed by a message to the originating house
announcing the signing of the bill and its deposit
with the secretary of state. Dissent ordinarily takes
the form of the governor’s returning the bill to the
originating house with a message giving his reasons
for disapproval. The veto may in a number of states
also be exercised at the close of the session by allowing
the undesirable bills passed during the final days to
expire by the withholding of the Executive signature.

The methods of financial legislation in the state
legislatures are full of confusion and are indeed in
urgent need of systematization. The unity of a
budget in which the resources and necessary expen-
ditures of a state are summarized and balanced is
entirely lacking ; and in general the members do not
at any stage of the session enjoy a fair opportunity
to understand the exact nature and mutual relations

186

PROCEDURE IN STATE LEGISLATURES

of the various financial proposals of legislation. While
a general appropriation hill, covering the regular
needs of the departments of government, is nsiially
prepared by the financial committee, any member has
of course the right to introduce bills directly or in-
cidentally carrying an appropriation. Such meas-
ures are generally referred, not to the committee deal-
ing with appropriations, but to that which has juris-
diction over the special subject matter of the bilL^
The difficulty of forming a clear conception of the
scope of pending financial legislation is augmented by
the fact that in many states there are large per-
manent appropriations which do not need special re-
enactment at every session, and whose relation to
temporary and annual appropriations it is not easy
for the ordinary member to gage. While most ap-
propriations are made in fixed amounts, indefinite
appropriations are found in states where no strict
constitutional provisions on this matter exist; and
even where the latter is the case, the appropriations
are often so general and so liberal that, though for a
fixed amount, they are very indefinite as to the man-
ner in which the money is to be expended. The last
days of the session are usually so crowded with ap-
propriation bills, that it is not possible even for the
chairman of the Finance Committee and other leaders
to enjoy a complete survey of such legislation. The
bills that are passed are then submitted to the gov-
ernor, who is thus enabled to fix the final character of
the financial legislation, although his discretion is

^In some states all bills involving appropriations must be
referred to the financial committee. See below.

187

AMERICAN LEGISLATURES

very mucli hampered in the states which do not per-
mit the veto of individual items in an appropriation
bill.^ At no stage of the session and not even for a
long time thereafter can it be determined with ac-
curacy how much money has actually been appro-
priated. That such a condition of affairs does not
result in a careful administration of state finances is
not surprising. Upon the legislature itself it has a
most demoralizing effect, especially since so many
members are predisposed, on the principle of ''do
unto others,’’ to vote for almost any appropriation
that may come up.

It is a general practice for some state official, the
auditor, or controller, or secretary of state, to pre-
pare a statement of the financial condition of the
state, to which in most cases is added an estimate of
the appropriations necessary for the various depart-
ments. This statement is printed and placed in the
hands of the legislators. But as most of the latter are
inexperienced in dealing with financial and statistical
matters, and as there is no financial minister in the
legislature, whose duty it is by lucid explanation to
give life to dead statistics, these estimates do not have
a very enlightening effect upon the average member.
In some cases other means have been provided for the

twenty-nine states tlie governor has been granted au-
thority to veto separate items in appropriation bills: Alabama,
Arkansas, California, Colorado, Delaware, Georgia, Idaho, Illi-
nois, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mis-
sissippi, Missouri, Montana, Nebraska, New York, North
Dakota, Ohio, Pennsylvania, South Carolina, South Dakota,
Texas, Utah, Virginia, Washington, West Virginia, Wyoming*

188

PROCEDURE IN STATE LEGISLATURES

purpose of furnisliing estimates. The new constitu-
tion of Alabama provides that the state officers shall,
before the opening of the legislature, prepare a gen-
eral appropriation bill covering the needs of the
various departments and institutions of the state,
within the limits of its probable revenue. This bill
gives the legislature something definite to work on.
In Indiana, the governor, immediately after the
November election, appoints a committee from the
state legislature, whose duty it is to examine the
various state institutions and to make a report upon
their condition and their financial needs. In most
states, the preparation of the general appropriation
bill is left to the Committee on Appropriations, which
is called in some legislatures Committee on Ways and
Means, or on Finance.

In a number of states the constitution requires that
the general appropriation bill shall not contain any-
thing but appropriations for the ordinary expenses
of the executive, legislative, and judicial departments
of the state, and for the interest on the public debt;^
in some cases appropriations for the public schools
are included. It is also generally provided that all
other special appropriations are to be made by sepa-
rate bills embracing but one subject each. Under the
constitution of New York no provision can be at-
tached to the annual appropriation or supply bill un-
less it relates specifically to some appropriation there-
in made; this effectually prevents the attachment of

^Alabama, Arkansas, California, Colorado, Georgia, Illinois,
Missouri, Montana, North. Dakota, Pennsylvania, South Dakota,
West Virginia, Wyoming.

189

AMERICAN LEGISLATURES

riders, dealing with, entirely extraneous matters, to
appropriation bills. It is not difficult to see the pur-
pose of these various provisions. Experience has
shown that where it is possible to combipe a large
number of miscellaneous appropriations in one meas-
ure, the practice known as log-rolling inevitably be-
comes prevalent. But while these provisions discour-
age log-rolling, they also make it impossible to have
a budgetary law which will deal with all the appro-
priations of the state and in which an attempt can be
made to harmonize financial measures and bring them
into proper relation to one another. The Missouri
constitution of 1875 established a general order of
precedence for appropriation bills. Priority is fixed
in the following manner: first, appropriations for
interest on the public debt ; second, the sinking fund ;
third, public schools; fourth, assessment and collec-
tion of taxes; fifth, the civil list; sixth, eleemosynary
institutions ; seventh, the pay of the Assembly and all
other purposes. Before the Assembly can make an
appropriation for any of these purposes, the appro-
priations for all the preceding ranks must have
actually been completed.

All the legislatures have one or more standing com-
mittees dealing specifically with financial affairs. In
most states there are separate committees dealing with
appropriations and with matters of taxation in each
house. In some eases, however, both of these aspects
of financial legislation are intrusted to one committee.
Among other committees which are often found is
that on Contingent Expenses of the Houses-“a fav-
orite instrument of corrupt polities— and that on
190

PEOCEDUEE IN STATE LEGISLATUEES

Eetrenchineiit, whicli thongli expressive of a good
purpose is rarely of much importance in the revision
of financial legislation. Wisconsin has a joint com-
mittee on Finance, which, on account of representing
both houses and dealing with all of the appropriations,
has acquired great infliuence. The chairmanship of
financial committees is much sought after, and very
often the defeated candidate for the speakership in
the house is made chairman of the Appropriation
Committee.^

In some states the disadvantages and dangers of the
lack of concentration have been recognized and steps
have been taken to bring all financial legislation under
the supervision of one committee. Thus, in Illinois,
the rules provide that all bills carrying appropria-
tions, when reported by any committee, shall then be
referred to the Committee on Appropriations; and
the New York legislative law requires that all bills
involving appropriations shall be referred to the
financial committee in both houses. In Wisconsin the
old Committee on Claims in 1905 began to use its
influence for the harmonizing of financial legislation,
by issuing a statement of the exact amounts of all
standing appropriations, as well as a list of the bills
then before the legislature which in any manner in-
volved money grants. The Committee on Finance
continued the work of systematizing fiscal legislation,
and of dealing with all measures in their proper rela-
tion to one another. A searching analysis of all the fi-
nancial bills proposed at a session is very essential. In

^ Governor Higgins of New York first gained political promi-
nence as chairman of the Senate Committee on Einance.

191

AMERICAlSr LEGISLATURES

hundreds of eases members vote for bills without
being at all aware of the fact that they carry an
appropriation. Were their attention called to the
amount of expenditure involved, they would be far
more careful in their scrutiny of such individual
measures. Governors of commonwealths have often
made a special effort to effect reform in financial leg-
islation. Governors Odell and Higgins of New York
both made it a feature of their administrations to in-
sist upon careful financial methods; the latter spe-
cifically announced that sufficient revenue had first to
be provided before he would give his assent to any
appropriation bill. Governor Douglas of Massachu-
setts, in 1905, carefully reviewed the financial con-
dition of the state in a special message to the General
Court.

There is a growing tendency to make permanent
appropriations for certain administrative and educa-
tional activities of the state. Though the freedom of
legislatures is limited by this practice, it is of course
not in itself harmful as long as the appropriations are
originally made with sufficient care and surrounded
with proper safeguards. In fact, some of the ac-
tivities in which the states are now engaged could
hardly be carried on with the best of success were it
not possible to assure the agents and representatives
of the state of a reasonably permanent income to be
used for such purposes. Permanent appropriations
are used most commonly to provide for salaries of of-
fices created by law, for the work of special depart-
ments or commissions, and for the maintenance of
educational and charitable institutiona They are

192

PROCEDURE IN STATE LEGISLATURES

permanent in the sense that a new statute is not
needed at every session to keep them in force, and
that actual expenses incurred under them will be paid
out of the treasury without annual appropriations.
A very common example of this kind of appropria-
tion is a law granting the proceeds of a certain tax
(e, g.f a two-fifth mill tax) to a state institution. Such
a law may of course be repealed by any subsequent
legislature, but the amount accruing to the fund,
prior to its repeal, will be paid by the state treasurer
to the beneficiary institution, and may be expended
for its purposes. In a nuiuber of states, however, the
constitution provides that appropriations can be made
only for a certain time, the customary limitation be-
ing two years.^ In these states it is thus impossible
to make permanent or continuing appropriations ; but
even in their ease, though appropriations must be
renewed annually or biennially, the fact that certain
offices and institutions have to be maintained does it-
self tend to make a large number of appropriations
continuous in fact, though not in form. The New
York general appropriation bill is composed largely
of appropriations which are permanent in fact. In
the states in which no such constitutional restrictions
exist, the legislature can of course legally appropriate
money for an indefinite period. It is held in these
states that such a general law is sufficient authority
for all payments under it.^ In Ohio, where per-

* Kansas, Missouri, Montana, New York, Ohio, Texas, Missis-
sippi, Nebraska.

2 Jti re Contmuing Appropriations, 18 Col., 192. Nichols y.
Controller^ 4 Stew, and 154. State t?. Burdick, 4 Wyo., 272.

193

AMEEIGAN LEGISLATURES

manent appropriations are forbidden, the Supreme
Court has held that if expenses have been authorized
without an appropriation being made to pay them,
and if the expenses are actually incurred, they create
a debt against the state, for the payment of which,
however, a proper appropriation is necessary.^ The
states in which permanent appropriations have been
most freely used are the following: Colorado, Con-
necticut, Iowa, Minnesota, New Hampshire, North
Dakota, South Carolina, Indiana, West Virginia, Wis-
consin, Alabama, Georgia, Kentucky, and Oregon.

It is a provision found quite generally in state con-
stitutions that appropriations shall be fixed and spe-
cific. In practice, however, while the specific amount
of the grant must be given in the law, the manner in
which it is to be spent is frequently left to the dis-
cretion of officials. Thus, in California, an appro-
priation of $100,000 for the support and maintenance
of a Mining Bureau was held to be sufficiently ex-
plicit. But this would not be the case where no
definite sum is mentioned. Thus an act requiring the
controller to draw warrants for such sums as may be
due the state printer, -would not be a valid appropria-
tion. Governor Lanham of Texas, in a recent mes-
sage severely criticizes the practice of appropriating
lump sums to be spent at the discretion of officials,
and urges the desirability of itemized and specified
app^op^tio^is. It must be said, on the other hand,
that effective itemizing could, after all, come only
from the expert officials who alone have the necessary
practical knowledge of the activities and works con-
^ State V. Medbury, 7 OMo S., 522.

194

PEOCEDUBE m STATE LEaiSLATUEES

templated in any appropriation bill. Many constitu-
tions impose limitations on tbe power of legislatures
to make appropriations for private or local purposes.
In Illinois such appropriations are entirely forbidden.
In New York, Michigan, and Virginia they necessitate
a two-thirds vote of each house. In a large number
of states the legislature cannot authorize the payment
of any claim under a contract the subject matter of
which is not provided for by an existing law.

CHaPTEE VII

LEGISLATIVE APPORTIOISTMENTS AND ELECTIONS

A VERY important function of state legislatures con-
sists in the apportionment of the state for purposes
of congressional and local elections. Under the
democratic theory of our government, the principle
has been quite generally embodied in constitutional
law that the districts created for a certain electoral
purpose shall be as nearly equal in population as
possible. In some of the older states there are, how-
ever, still in existence conditions of local government
which make for very unequal representation. The
legislative bodies in other commonwealths have, more-
over, frequently strained constitutional theory and
law for the purpose of arranging the electorate in
such a manner as to bring the greatest advantage to
the dominant party in the matter of permanence of
power. Congress itself in the earlier part of our
history was not free from this practice. In a report
made to the Senate of the United States in April,
1832, by a committee of which Webster was chair-
man, it was stated that ‘‘the language of the Consti-
tution upon this subject is equivalent to a direction
to apportion the papresentation among the states ae-

196

LEGISLATIVE APPORTIONMENTS

cording to their respective numbers as marly as may
he. If exactness cannot from the nature of things
be obtained, then the nearest possible approach to
exactness ought to be made.’’^ The committee be-
lieved that the process theretofore adopted by Con-
gress was unconstitutional and that a purely mathemat-
ical system of apportionment should be substituted.
Though the theory of this report was not adopted for
some time, Congress finally in the act of May 23,
1850, adopted a mathematical basis and instructed the
secretary of the interior to allot to the several states
their respective numbers of representatives after the
census when the population had been ascertained,®

In most states, legislative apportiomnents are based,
with more or less exactness, upon population; but
geographical lines aifect this in a marked manner, as
in some states counties are represented, in others
townships, in still others groups composed of these
units. Extreme inequalities of representation occur in
states where the electorate is not divided according
to numbers, but exercises its function as grouped in
various units of local government. This system is
found in some of the older states where the original
privileges of local units of government have occa-
sionally been preserved. In a few states (New Jersey,
Rhode Island, South Carolina, Maryland) the Senate,
like the Senate of the United States, represents units
of political government. In South Carolina and New
Jersey each county is entitled to one, and only one,
senator. The inequality thus introduced is very strik-

* Webster, Works, ed. 1853, III, 369.

® A similar act has been passed every decade siaoe.

197

AMERICAN LEGISLATURES

ing ill New Jersey, where counties range from 12,000
to 328,000 are on the same basis in this respect. In
Maryland each county is entitled to one senator, and
the city of Baltimore to four. As a consequence the
senator from Calvert County represents approxi-
mately 10,000 people, while each of his colleagues
from the city of Baltimore represents over 126,000.
In Rhode Island, where each town is entitled to one
senator, the city of Providence with its 224,000 in-
habitants is put in the same rank as the country vil-
lage numbering a few hundred persons. A similar
system is used for the Lower House in a number of
states (Maine,. New Hampshire, Rhode Island, Ver-
mont, and Connecticut.) In Vermont, all towns and
city wards are on a basis of absolute equality, each
being entitled to one member. In Connecticut, towns
of over 5,000 inhabitants have two representatives;
smaller towns have either one or two, according to
their representation before 1874. In the other states
mentioned, the town is the basis of representation, each
unit being as a rule entitled to at least one member.
Massachusetts alone among the New England states
has placed the system of representation in both houses
on a numerical basis. It was formerly the universal
custom in that commonwealth that, where a number
of towns composed a single district for the election
of a representative, the office was passed from town
to town in regular rotation. This system is, how-
ever, gradually being abandoned; and in an indi-
vidual instance a member was recently re-elected for
a fourth term, though his district comprises ten towns.
The injustice of' the antiquated systems referred to
198

LEGISLATIVE APPORTIONMENTS

above appears clearly when it is considered to what
an extent the cities in such states, which frequently
contain the majority of the population and pay by
far the greater portion of the taxes, are nnder-repre^
sented in the houses of the legislature. The political
results of this unrepresentative and unproportional
system are especially deplorable. The scantily popu-
lated and over-represented rural districts constitute
areas most readily subject to corruption, and elector-
ates as well as their representatives are freely bought
and trafficked in. Ordinarily the state machine in
these commonwealths is stronger and more corrupt
than any city organization.

In New York, where special provision is made
for restricting the representation of the largest city,
which may never have over one-third of the legis-
lature, the Senate consists of fifty, representing
counties or groups of counties, and the Assembly of
one hundred and fifty, each man representing a
county, or a district into which counties are divided
in accordance with population. Pennsylvania has a
similar system. In Delaware, the Senate consists of
seventeen members and the House of thirty-four
chosen from the hundreds into which the three coun-
ties of the state are divided. In the Southern states
a greater uniformity of the basis of representation
exists as a result of reconstruction. South Carolina
alone gives one senator to each county. In the ma-
jority of the Southern states, senators are chosen from
special single-member districts. For the member-
ship of the Lower House most of these states take the
county as a Basis, allotting representatives according

199

AMERICAN LEGISLATURES

to population. In the North Central, and the Western,
states the prevailing system, subject to exceptions,
is that of single-member districts for both houses.
In Ohio and Missouri this system is combined with
county representation. In Montana and Idaho each
county is entitled to one senator, whatever its popula-
tion may be. In Illinois the Senate and House districts
are identical, each district returning one senator and
three representatives. A similar arrangement pre-
vails in Minnesota and North Dakota.^

The art of gerrymandering aims to eliminate or re-
strict the representation of the minority party
through an arrangement of congressional and legis-
i lative districts, which by combining majority and
minority communities will give more representatives,
though with smaller pluralities, to the party in power.
But it frequently happens, with our unsettled politi-
cal conditions, that in a sudden reaction this narrow
margin may be overturned, and the plan designed to
render one party ^s stay in power of long duration is
converted to the advantage of its opponents. By a
shrewder use of this method, the vote of the opposi-
tion is massed in as few districts as possible, leaving
the remainder ordinarily an easy conquest for the
dominant party. From the point of view of party
interest, this plan is in the long run usually found
j a more profitable one than that in which the new
; arrangement is superficial and the party margin dan-
i gerously small. It is also more alluring to the ordi-
J nary legislator, as it takes far better care of local

^For a fuller discussion see Haynes, ^^Representation in
State Legislatures.”

200

LEGISLATIVE APPORTIONMENTS

and special interests than its earlier counterpart, wMch
is designed more for the benefit of the party at large.
In the eyes of the politician, as one of the most scien-
tific of reapportionment architects cynically re-
marked, ‘‘apportionments are not made to keep men
in Congress, but to permit other men to get there/

On the other hand, in states where the federal organ-
ization is strong, the wishes of the majority congress-
men often play a predominant part in the division
and construction of districts. Sometimes advantage
is taken of rearrangement opportunities to eliminate
a member not in favor with the dominant forces by
consolidating his district with that of a neighbor of
greater local strength.

Types of irregularly shaped congressional districts, j
framed and fashioned so as to further special and ■
personal political interests, are found in all sections
of the country. Examples of the so-called “ shoe- '
string’’ districts exist in many states, although ;
the most noteworthy instances were formed in the \
South during the struggle for race supremacy in |
politics, when the gerrymander was frequently re- i
sorted to as a convenient method of eliminating, or i
at least minimizing, negro influence. Mississippi,
Alabama, Missouri,, and South Carolina furnished

^ W, T. Price, who enunciated this theory in the words above,
furnishes a striking example of its occasional truth in practice.

In 1881 Senator Price was chairman of the joint committee on
Apportionment in the Wisconsin legislature. Repeatedly dis-
appointed in his aspirations for the congressional nomination,
he came to an understanding with the Democratic leader of the
Senate, by which they carved out districts fitted to their needs,
sending them to Washington in 1882 and again in 1884.

201

AMERICAN LEG-ISLATURBS

the most striking examples of freak districts, com-
posed of counties of divergent interest, and connected
in some cases merely by corners. The apprehended
danger being greatly lessened, the present apportion-
ments are not nearly so unreasonably shaped as those
of previous decades. Illinois to-day presents in cer-
tain of her congressional districts convenient exam-
ples of ‘‘scientific gerrymandering.’’ The “saddle
bag district” (the Twenty-third), comprises two
groups of counties at different sides of the state, so
connected as to crowd as many Democratic counties
as possible into one district and thus secure Repub-
lican seats in nearby districts by eliminating the vote
of hostile localities. The “belt line district”
(Eleventh), so-called because it runs around Cook
County, and the Fifteenth district, which is similar
in shape, were also given their peculiar form for
party reasons. In this state as in a number of others,
the conflicting parties have been competitors in freak
apportionment, the Democratic gerrymander of 1893
rivaling its Republican counterparts of 1881 and
1901. Among the most striking examples of oddly-
shaped congressional districts are the following :
The Fourteenth in Missouri, the original shoestring
district, which formerly had the largest population of
any district in the state; the Fourth and the Seventh
in Alabama; the Third in Iowa. The more uniform
development of the economic life of our country has,
however, lessened the evil effects of grouping the
electorate in districts of somewhat bizarre form.

There are many examples to prove the dangerous
nature of this weapon to its wielders. Not long after

202

LEGISLATIVE APPOETIONMENTS

the Democratic rearrangement of 1893 in Illinois,
the party had fewer representatives from that state
in Congress than at any date for decades. The Ohio
Democrats, in 1892, were able by skilful redistricting
to place enough Democratic counties in McKinley ^s
district to deprive him of his seat in Congress. But
as a direct result McKinley was forced into a larger
field, the reaction making him governor of Ohio in
1893 and again in 1895. In 1881, the Wisconsin
Republicans divided their state so as to return three
Democrats and six Republicans to Congress, but in
the election of the following year, the figures were
exactly reversed. Although, in 1890, the Democratic
control of Wisconsin was complete and the party
gerrymanders were masterful, the year 1892 saw the
Republican members of Congress from that state
increased in number from one to four; and in 1894
a solid Republican delegation was returned. Certain
states have, through the retention of antique systems
of town and borough or county elections, acquired an
extreme inequality of local representation without
resorting to the weapon of the gerrymander. In
New England, the birthplace of the gerrymander,
we find examples of its smoothest working. New
Hampshire and Maine, in spite of difficulties raised
by strict constitutional provisions, succeed in limiting
the minority to the minimum of local representation.

The apportionment is in most states made at the
session succeeding the decennial year when the popu-
lation of the state has been ascertained by the national
census ; some states also use the intermediate census
made by their own government as a basis for electoral

203

AMERICAN LEGISLATURES

divisioBS. Tlie common practice assigns tlie division
of the state altogether to the legislature, but in some
states, as in Michigan and New York, the legislature,
after providing for the Senate districts, merely deter-
mines the number of members of the Lower House to
which each county is entitled, and leaves the fixing
of the district boundaries to the local authorities^
order to limit the discretion of legislatures in
the matter of apportionment and to oblige them to
make a more equitable division of the electorate,
strict constitutional provisions have in many states
been adopted. A good example of a detailed regula-
tion is found in the New York constitution of 1895
(Art. 3, Sec. 2). This constitution provides that the
Senate shall consist of fifty members, the Assembly
of 150; that the apportionment is to be changed by
the legislature after the enumeration pf 1905 and
every ten years thereafter. The Senate districts are
to contain as nearly equal a number of inhabitants
as may be; they are to be compact in form, consisting
of contiguous territory. No county is to be divided
save to make two or more Senate districts wholly

^ In 1893, in the case of Baird, et al., v. Supervisors of Kings
County (138 N. Y., 95), the New York Court of Appeals held
unconstitutional a division of a county by the local authorities
into Assembly districts whose population ranged between 31,685
and 102,805. A year later, when this unequal representation
had been modified so that the districts varied only from 48,944
to 61,263, the arrangement was held valid by the Court of Ap-
peals, even though it was admitted that the apportionment had
been made with the object of giving equal representation in
the Lower House from the county to twb parties quite unequal
in strength. (Matter of Baird, et al, 142 N. Y., 523, 1894.)

204

LEGISLATIVE APPOETIOlSrMEISrTS

within such county. No county is to have more than
one-third of all the senators, or any two adjoinhig
counties more than one-half. If a county having
three or more senators is entitled to a greater num-
ber, the senators allotted to it shall be given in addi-
tion to the fifty already provided for. Each county,
with one exception, is entitled to at least one member
of the Assembly ; in the counties entitled to more than
one member, the Board of Supervisors or the Com-
mon Council make the apportionment. But each As-
sembly district must be wholly within a Senate dis-
trict, and no township or city block is to be divided.
Legislative apportionment is subject to review by the
Court of Appeals at the suit of any citizen.

The New York Court of Appeals had before this
shown itself rather reluctant to interfere with the
legislative discretion in matters of apportionment.
Great inequalities had existed under the later acts.
Thus the act of 1879 gave one representative to Suf-
folk County with 50,330 inhabitants; two to Cat-
taraugus with only 45,737, and three to St. Lawrence
with 78,014. Governor Eobinson spoke of these ine-
qualities as admitting of no apology or excuse. But
he was powerless in the matter, since a veto of the
law would have left the still more objectionable act of
1866 in force. Under the act of 1892 also there were
some glaring inequalities; the Twelfth Senate dis-
trict had only 105,720 inhabitants, the adjoining
Thirteenth 241,138. This time St. Lawrence with
80,679 inhabitants received only one assemblyman,
while Dutchess with 75,078 received two, and Albany
with 156,748 received four. The Court of Appeals,

205

AMEEICAN LEGISLATUEES

which was called upon to decide on the constitution-
ality of this act, refused to interfere with the discre-
tion of the legislature.^ The principle upon which
the Court based its decision was stated in the follow-
ing language; ^‘The discretion necessarily vested in
the legislature must be finally disposed of by it, unless
there is such an abuse of that discretion as to clearly
show an open and intended violation of the letter and
spirit of the Constitution.’^ The Court was also
strongly impressed with questions of expediency in
the situation, as is apparent from the gfergument in the
opinion, that the effect of setting aside an apportion-
ment act would be to cause every subsequent act to
be brought before the courts for review, which might
happen at a critical time; to originate the greatest
confusion at the impending election with a possible
total suppression of it; and at all events to continue
in force an act containing greater inequalities than
the one attacked. These considerations were sufficient
to induce the Court to say that ‘^only in a case of
plain and gross violation of the spirit and letter of
the Constitution should it exercise the power.”

The Supreme Court of Illinois has been similarly
disinclined to interfere with legislative apportion-
ments.^ It held that the courts cannot inquire into
the motives which have influenced the legislature in
making an apportionment. If the constitutional re-
quirements of compactness of territory and equality
of population have been applied at all, the Court will
not interfere, though the nearest possible approxiina-

^People ex. rel. Garter v. Biee, 135 N. Y., 473 (1892),

® People ex rel, Woodyatt v. Thompson, 155 111., 451 (1895) «

206

LEGISLATIVE APPORTIONMENTS

tion to these requirements may not have been attained.
The Court held that an act apportioning senatorial dis-
tricts is unconstitutional, if it appears that the consti-
tutional requirements of compactness of territory and
equality in population have been wholly ignored, and
not considered or applied to any extent. But if con-
sidered and applied, although to a limited extent only,
subject to the more definite limitations, the act is
constitutional, although the legislature may have im-
perfectly performed its duty. . As the courts

cannot make a senatorial apportionment directly,
neither can they do so indirectly. There is a vast
difference between determining whether the principle
of compactness of territory has been applied at all or
not, and whether or not the nearest practical approxi-
mation to perfect compactness has been obtained. The
first is a question for the courts to determine; the
latter is for the legislature.’^

The Supreme Court of Kansas in an earlier case
leaves considerable discretion to the legislature in the
matter of apportionment.^ Justice Brewer says, in giv-
ing the opinion of the Court, — ‘ ‘ An apportionment can-
not be overthrown because the representatives are not
distributed with mathematical accuracy, according to
the population. Something must be left to the discre-
tion of the legislature, and it may, without invalidat-
ing the apportionment, make one district of a larger
population than another. It may rightfully consider
the compactness of territory, the density of popula-
tion, and also, we think, the probable changes of the
future in making the distribution of representatives.”

^Prouty V. Stover, 11 Kans., 235 (1878).

207

AMERICAlSr LEGISLATURES

A most extreme position was taken by the Supreme
Court of Appeals of Virginia^ in declaring that ^^the
laying olBE and defining the congressional districts is
the exercise of a political and discretionary power of
the legislature, for which they are amenable to
the people whose representatives they are/^ This
opinion, which was given by the Court without any
discussion of the question, was declared although
specific constitutional restrictions upon the legislative
power had been invoked.

Courts in other jurisdictions have recently taken a
more decisive stand against the abuse of legislative
discretion in districting the state for electoral pur-
poses. The state of Michigan suffered a good deal
from frequent unscrupulous gerrymandering, as the
constitution did not prescribe a definite period of ap-
portionment. The Republicans in 1885, and the Demo-
crats in 1891, in the first ease upon a majority of less
than 4,000 in a total vote of 400,000, so gerry-
mandered the senatorial districts as to yield their own
party twenty-one senators and their opponents eleven.
Under the apportionment of 1891, eight counties
with a population of 40,000 were formed into a dis-
trict having one senator, and nine adjoining counties
with 97,000 inhabitants were given the same repre-
sentation. Both of the acts mentioned were held un-
constitutional by the Supreme Court, which decided
among other things that it was not a due exercise of
legislative discretion under the constitution, to give a
county of less population than another greater repre-
sentation, and that the discretion of the legislature

^Wise V. Bigger, 79 Ya., 269 (1884).

208

LEGISLATIVE APPOETIONMENTS

must be honestly exercised so as to preserve the
equality of representation as nearly as may be.^ The
judges, in their written opinions, used very strong
language in denouncing the practice of gerrymander-
ing. Chief Justice Morse declared that the courts
alone could in this matter save the rights of the peo-
ple and assure them of equality in representation;
and another justice said, ‘‘Such laws breed disrespect
for all law, for law makers become law breakers. ’ ’

The Supreme Court of Wisconsin has taken espe-
cially advanced ground in enforcing constitutional
limitations upon the discretion of the legislature.^
The court decided that “an apportionment act may be
judicially declared void for violation of a constitu-
tional requirement of apportionment according to the
number of inhabitants, when the disparity in their
numbers, in the districts created, is so great that it
cannot possibly be justified as an exercise of judg-
ment or discretion. A constitutional requirement of
apportionment according to the number of inhab-
itants in creating Assembly and Senate districts, is
violated by an apportionment act in which, with the
average population of 51,117 for a Senate district,
the number of inhabitants in the respective districts
created ranges from 37,000 to 68,000; and in the
Assembly districts, with an average of 16,868, it
ranges from 6,000 to 38,000. Such an act is not an
‘apportionment’ in any sense of the word, but is a

^ Supervisors of Houghton County v. Blacker, 92 Mieh., 638.
Gildings v. Blacker, 93 Mich., 1 (1892).

2 State ex rel. Attorney General v. Cunningham, 81 Wis., 440.
Lamb u. Cunningham, 83 Wis., 90 (1892).

14

209

AMERICAN LEGISLATURES

direct and palpable violation of the Constitution^ bear-
ing upon its face intrinsic evidence that no judgment
or discretion was exercised in an attempt to comply
with the constitution. The whole act must be held
void if constitutional requirements are violated in
the formation of some of the districts.’’ In the
second case the Court decided that ‘^any number of
legislative violations of plain and unambiguous con-
stitutional provisions regarding the apportionment of
legislative districts cannot be regarded as abrogating
such provisions. , . . The unnecessary inequalities
under the apportionment of July, 1892, such as one
Assembly district having three times the popula-
tion of another or one Senate district having double
that of another, are held to render the act invalid.”

The Supreme Court of Indiana in the same year
also announced the doctrine of a stricter limitation of
legislative discretion.^ It held in substance: ^*The
legislature has no discretion to make an apportion-
ment in disregard of the enumeration of inhabitants
authorized to vote, as provided for in the Constitu-
tion; and because exact equality is not possible, the
General Assembly is not excused from making such
an apportionment as will approximate the equality
required by the Constitution. This rule forbids the
formation of districts containing large fractions un-
represented where it is possible to avoid it, while
other districts are largely over-represented. While
the General Assembly has much discretion in dispos-
ing of the fractions of the unit of representation, yet
it is not beyond control. No scheme for senatorial dis-

^ Parker “U. State, 133 lad., 178 (1892).

210

LEGISLATIVE APPORTIONMENTS

tricts can be lawfully devised in which a county hav-
ing less than the unit of population for a senatorial
district can legally be entitled to vote for two senators,
where the constitutional provisions require equality in
representation. A county having more than the repre-
sentative unit of population cannot be denied the right
to a separate representative.”

In deciding upon questions of apportionment the
courts often face a difficult problem in the fact that
by declaring the act under consideration void, the
state is left at the mercy of still more intolerable con-
ditions under earlier acts. In the Michigan cases of
1892, the Supreme Court held vqid not only the
apportionment of 1891, but also the act of 1885,
under which three elections had been held ; and pre-
scribed that election notices should be issued by the
secretary of state under the old law of 1881, unless a
new and valid apportionment should be made by the
legislature. In the Wisconsin cases the Court took
cognizance of electoral conditions, but, refusing to be
influenced by them, declared only the act before it
invalid. It did not investigate the earlier acts as to
constitutionality, although the separate opinions show
that these acts were in the same class with the law
held void. The Court, however, did suggest action
by extra session, as alternative to elections under a
previous act. While the Supreme Court of Michigan
decided the Michigan acts of 1891 and 1885 both un-
constitutional, the Indiana Court declared contrary
to the constitution two acts of 1891 and 1879, but
refused to consider the constitutionality of the act of
1885, as this question had not been brought before it.

211

AMERICAN LEGISLATURES

This matter was given careful consideration by the
New York Court of Appeals, but an opposite conclu-
sion was arrived at; the very fact that the earlier
acts were also contrary to the constitution was made
a reason for upholding the act before the Court. Re-
garding this subject, Justice Peckham used the fol-
lowing language:^ ‘Yf the act of 1892 is void, the
act of 1879 is also plainly void and no election of
members of the Assembly should be tolerated under
it. This might relegate the people to the act of 1866,
and thus we might have an attempt at an election for
members of the Assembly under an act a quarter of a
century old and a legislative representation of the peo-
ple of that time. This would be a travesty on the law
and upon all ideas of equality, propriety and justice.
We are compelled to the conclusion that this act of
1892 successfully withstands all assaults upon it and
is a valid and effective law. ’ ’

In order to eliminate the evils accompanying the
present system of apportionment, with its strong
temptation to gerrymander, various alternative plans
have been proposed. They have, however, not as yet
been proven in practice to possess the remedial virtues
urged in their behalf. According to the customary
.attitude among the people, a great deal of attention
;:has been devoted to the effects of the present inade-
I quate system, while comparatively little has been paid
'to its source. The palliatives that have been sug-
gested include elections at large, apportionment by
.congressional action, cumulative voting and the quota
i system of proportional representation ; but while ad-

^ People ex rel. Carter t?. Bice, 135 N. Y., 509.

212

LEGISLATIVE APPORTIONMENTS

mitting tlie special advantages of eacli, it is not clearly
evident that any one of the proposed changes would
completely bring about the desired result of fair and
equal representation of interests and sections as well
as of population. The system of minority representa-
tion in use in Illinois, where each Assembly district
elects three members and every voter is given three
votes, has resulted occasionally in entirely destroying
freedom of choice, and making a nomination equiva-
lent to election. As the members of the minority party
can always by massing their votes be sure of elect-
ing one representative, arrangements have often been
made by the machines of both parties whereby only
three candidates, two representing the majority and
one the minority, are placed in nomination. In a re-
cent election in Cook County, only fifty-nine candi-
dates had been nominated to fill the fifty-seven posi-
tions available. This assurance of election had a
most undesirable effect on the quality of the material
selected by the political organizations to fill legisla-
tive positions.

Under the usual constitutional provision that each
house shall judge of the election and qualifications of
its members, the federal House of Representatives
and the houses of the state legislatures determine
authoritatively and finally, in the ease of a contest,
who is to be admitted to the rights of membership.
The courts do not ordinarily interfere with the exer-
cise of this power unless specific constitutional provi-
sions exist.^ Specific qualifications are often de-

^ Hughes V. Felton, 11 Colo., 489. Coddington v, Buffett
(Md.), 45 Atl., 204. Naumann v. Canvassers of Detroit, 7S
Mich., 252. See, however, In re Gunn, 50 Kans., 155 (1893).

213

AMERICAN LEGISLATURES

manded by the constitution for membership in the
legislature. It is not, however, common for the legis-
lature to be called upon to vacate a seat on account
of the absence of such constitutional qualifications.
Among the qualifications most generally required
for the Senate, are residence in the state (the maxi-
mum, seven years, in New Hampshire; six years, in
Kentucky), and residence in the district which the
senator represents (maximum, two years, Illinois and
Louisiana). Often there is an age qualification (the
maximum being thirty years, in six states) . For mem-
bership in the Lower House the maximum qualifica-
tion of residence is five years (Illinois and Louisiana),
and of residence in the district represented, two
years. A few states have an age qualification
(twenty-one, twenty-four, or twenty-five years). In
West Virginia, salaried officials of a railway are ex-
cluded; in Kansas, Georgia, and West Virginia, any
person who has embezzled or misused public money;
in Nebraska, any one concerned in a state contract.
Some constitutions provide that officers of the federal,
the state, or any city or county, administration are not
eligible to the legislature. But it has been held that
such inferior officers as justices of the peace and
deputy clerks of court are not within this prohi-
bition.^

The cause for contesting an election may be, of
course, the absence of the qualifications demanded by
the constitution; but it is more usually based upon
some alleged irregularity in the election, such as a

^Opinion of the Justices, 68 Me., 594. People Grreen, 58
N. y., 295. .

214

LEGISLATIYE APPORTIONMENTS

miscount, or the presence of bribery or other corrupt
practices. The discretionary nature of the power
over elections renders it very important, especially at
times of great political excitement and close party
votes, when it will generally be easy to adduce at least
plausible evidence of illicit practices in the election of
members.

The procedure followed in eases of membership
contests varies in the different legislative bodies, and
depends entirely upon the convenience and desires of
the legislature in question, as in this matter no iegis>
lature is bound by the acts or rules of its predeces-
sors. Nor will the courts interfere in this procedure.
It is indeed, ordinarily held that they may by man-
damus compel the election officers to return the results
of a vote ; but the legislature is not bound by an elec-
tion certificate in determining the right of a member
to a seat. The Supreme Court of Michigan refused to
grant a writ of mandamus at the instance of a candi-
date for the office of state senator to compel the Board
of Canvassers to recount the ballots, on the ground
that, the Senate being the absolute judge of the elec-
tions of its own members, a recount would be mean-
ingless unless ordered by that body.^ The procedure
in election contests before the United States House of
Representatives is governed by the provisions of the
Revised Statutes (Secs. 105 to 130). This statute is
very anomalous in that, though created by the com-
plete lawmaking agency and embodied in the statutory
law, it is of course not binding on the House of Repre-
sentatives itself, no more than the rules of a former

^ Naumaim v. City Canvassers of Detroit, 73 Mich., 252.

215

AMERICAN LEGISLATURES

House woiild be, since the House alone is the judge of
the qualifications and election of its members. The
House can therefore at any time depart from this
statute, make different requirements, and follow a dif-
ferent procedure. But as long as the House itself
adheres to the statute, it is of course binding on indi-
vidual contestants. Under the statute, notice of the
contest must be given within thirty days after the re-
sults of an election have been determined. The member
whose right is assailed must answer within thirty
days, and ninety days are allowed for taking testi-
mony. There are explicit requirements with regard
to the taking of depositions and their submission to
the House. An election contest differs from an ordi-
nary action at law in that it is not looked upon as
a suit between two persons for a seat in Congress,
but as a public matter in which the interests of the
constituents are involved. It is therefore not per-
missible that such a contest be settled by stipulation
between the parties, nor can judgment be taken by
default ; but the case must be decided after thorough
investigation of the evidence.^ When the qualifica-
^tions of a person for a seat in the legislature are
questioned it is the legal requirements that are in-
volved and not his moral character. The latter can
be attacked only in proceedings for expulsion. In
this matter, too, the discretion of the legislature is
usually unlimited, with the exception that a member
reelected by his constituents after expulsion may not
ordinarily be expelled for a second time. The United
i States House of Representatives has decided that a
^ Eollett t?. Delano, 2 Bart. Elect. Cas., 113.

216

LEG-ISLATIYE APPORTIONMENTS

member may be expelled for offenses committed be-
fore bis election, especially if they were not known to
his constituents.^

A question of great political importance arises
when a legislative house is divided into two bodies,
each of which claims to be the rightful house, legally
authorized to transact the legislative business. The
general rule in such cases is to consider that body as
legally organized which has maintained the regular
forms of organization according to the laws and
usages of the legislature. But the questions of fact
arising under this legal principle are often very diffi-
cult to determine, and give rise to serious political
danger. Where a house contains hold-over members,
its organization is perpetual, and difficulties, though
by no means excluded, are not so apt to arise, because
the new members are not entitled to create a separate
organization. A federal statute empowers the clerk
of the preceding House of Representatives to preside
at the organization of the new House, and to inscribe
on a roll the names of representatives whose creden-
tials are sufficient under the law. There is of course
some danger of an abuse of this power at times of
close party struggle, and great legal difficulty is pre-
sented by the fact that the new House in determining
upon its organization cannot be bound by such a
statute, although it may voluntarily submit to it.

A number of serious controversies between rival
houses have occurred in the states. The United

^ See ^ ^ Congressional Globe, ' ^ Forty-second Congress, 3rd
Session, Part III, p. 1651.

217

AMERICAN LEGISLATURES

States Senate in determining upon the elections of its
own members may be called upon to decide a contest
between factional houses as far as a senatorial elec-
tion is concerned. In the case of Sykes v. Spencer,^
the Senate refused to recognize the certificates of elec-
tion of members of a state legislature who were not
in its opinion legally entitled thereto, while it ac-
cepted the votes of members who though without such
certificates were in its opinion legally elected. In the
words of Senator Carpenter, ‘At inquired into the
fact rather than the evidence of fact.’’ It was de-
cided in an Alabama case,^ that a body of men claim-
ing to be the General Assembly of Alabama, and
actually comprising a majority of the members
legally elected, constituted the lawful legislature of
the state, though it did not assemble in the Capitol,
and the lieutenant-governor did not preside in the
Senate. In Kansas it was decided,® that where a
majority of the members of the House of Representa-
tives, each holding a regular certificate of member-
ship, meets at the customary time for the commence-
ment of a session in the hall of the House at the
Capitol, and perfects an organization as the House of
Representatives, such a body is duly organized al-
though the governor or the Senate or both refuse to
recognize it. Nor is its power destroyed by the organ-
ization in the same room of another pretended House
of Representatives having less than a constitutional
quorum, although this second body is recognized by

^ Eorty-third Congress, 1st Session, Ept. 29L

® j&a; parte Screws, 49 Ala., 57.

® In re Gunn, 50 Kans., 155.

218

LEGISLATIVE APPOETIONMENTS

tiie governor and the Senate as the de facto House of
Representatives.^

An extreme case of the use for political purposes of
the power over contested elections was made by the
two houses of the Colorado legislature in 1903. The
Republicans in the House, alleging election frauds,
unseated just enough Democrats to assure a Repub-
lican majority on joint ballot in the election of a
United States senator. Before the election could take
place, the Democratic majority in the Senate by a like
procedure regained control of the joint session. The
Republican lieutenant-governor attempted to recog-
nize the Republican minority as the Senate. He ap-
pealed to the governor, a man of the same party, for
troops, but was refused. The Democrats of both
houses then assembled in joint session, in all a bare
majority of the legislature, and reelected Senator
Teller. This incident shows the extreme danger that
may occur when the two houses are of different polit-
ical complexion, and when the margin is so small that
the unseating of a few members of either house will
have a decisive influence in the senatorial election.
A similar controversy was threatened in West Virginia
in 1899, when there was a Republican Senate and a
Democratic House.

^ In this case the Court said : ^ ^ The House of Representatives
is not the final judge of its own powers and privileges in
eases in which the rights and liberties of the subject are con-
cerned; but the legality of its action may be examined and
determined by this Court. The House is not the legislature
but only a part of it, and is therefore subject in its action to
the laws, in common with all other bodies, olSdcers, and tri-
bunals within the state. ’ ^

219

AMERICAIT LEGISLATURES

Aside from determining the qualifications and elec-
tion of their own members, the legislatures in many
states have the right to try contested elections for
various state offices.^ In California, Pennsylvania,
and Delaware, such contests are decided by a com-
mittee of both houses. In some states the legislature
constitutes in effect the supreme canvassing board for
all state elections. An extreme use of the power of
the legislature over state elections occurred in Colo-
rado in 1905. On the face of the returns the Demo-
cratic candidate for governor had been elected; but
the legislature threw out enough votes to elect the
Republican candidate, Peabody; and was sustained
therein by the courts which sent a number of Demo-
cratic politicians to prison for election frauds. A
compromise was, moreover, made with Peabody, ac-
cording to which he was to resign his office on being
declared elected, and to permit the Republican lieu-
tenant-governor, a more popular man, who had been
most prominent in the unseating controversy, to suc-
ceed him.

In Rhode Island before 1893, as originally in all
New England states, a majority vote was necessary
to elect any state officer. In case of failure to elect,
which was comparatively frequent under this system,
the respective officers were elected by the legislature

^GoTernor and executive officers in New Hampshire, Massa-
chusetts, Maine, Vermont, Rhode Island, North Carolina, Ar-
kansas, Texas, Colorado, Illinois, Nebraska, Georgia, Alabama,
Missouri, Mississippi. Governor and lieutenant-governor in
Virginia, West Virginia, Indiana, Iowa, Kentuckj, Tennessee,
Oregon, South Carolina, Maryland.

220

LEGISLATIVE APPORTIONMENTS

in joint session. Tlie Constitution was, however,
amended in 1893, by reducing the requirement for
election to a plurality.^ In Connecticut a similar con-
stitutional requirement, which has also recently been
abolished, caused a serious deadlock in 1891-92. In
three elections in succession had the Democratic can-
didates for state offices received a plurality, though
not a majority, of the popular vote; and each time
a Republican majority of the legislature, representing
a minority of the people of Connecticut, placed the
Republican candidates in possession of the contested
offices. The close election of 1890 found the Demo-
cratic candidates for lieutenant-governor, secretary
of state, and controller elected by a majority, the
governor by a decisive plurality, but by a narrow
majority, dependent for existence upon the omission
of 100 Prohibition votes. The legislature consisted
of 140 Republicans representing districts whose vote
amounted to 73,144, and 134 Democrats, whose elec-
torate was over twice as numerous, comprising 195,840
votes. The Senate was Democratic, the House Repub-
lican. The Republicans refused to ratify any of the
Democratic elections to the state offices. The contest
was bitter and prolonged, the Republican governor
of the preceding period, Bulkeley, holding over. Re-
garding him as a ‘^usurper,’’ the Democratic Senate
refused to pass the appropriation bills. The Lower
House was even more obstructive, hoping by holding
up the minor state offices to force a surrender on the
governorship. The state government was left with-
out funds, but the holdover controller, on the ad-
^ The older requirement still exists in New Hampshire.

221

AMERICAN LEGISLATURES

vice of bi-partisan counsel, obtained money and ex-
pended the same where he deemed it necessary, under
authority derived from general acts of a period long
past. The struggle over the contest was finally taken
to the courts, where it was ultimately decided, under
the constitution, that as the legislature had failed to
make its decision within two days, the executive of
the preceding term held oflSce de jure as well as de
facto. This decision was reluctantly received, reliev-
ing an anomalous condition which had lasted the
better part of two years, during which the state had
been unable to exercise its will through its legislature
or its properly elected officials. The succeeding elec-
tion returned the wronged Democrats to power with
no question as to majority.^

The legislatures in some states are by constitu-
tional provision entrusted with the power of electing
certain state officers. This arrangement was used
more generally in the earlier decades of our national
life. The more recent tendency has been toward
popular election of the more important officials of
the state. The following table will give a summary
view of the direct electoral function of state legisla-
tures. The following officials are elected by the legis-
lature in joint session :

1 The important subject of elections to the United States
Senate, which on account of the limitations of space cannot
be dealt with in this volume, has recently been taken up by
George H. Haynes, “The Election of Senators” (1906). See
also John Haynes, “Popular Election of United States Sena-
tors,” in J. H. U. Studies, 1893. The removal of the sena-
torial elections from the state legislatures will greatly re-
lieve the political tension in those bodies.

.'222

LSaiSLATIVE APPORTIONMENTS

The state treasurer, in New Jersey, Maryland,
Delaware, New Hampshire, Maine, Tennessee.

The secretary of state, in Vermont, New Hamp-
shire, Maine, Tennessee.

The controller, or the auditor, in New Jersey,
Virginia, Tennessee.

The attorney-general, in Maine; the solicitor-gen-
eral, in Georgia.

The commissary-general, in New Hampshire.

The state printer, in Kansas.

The governor’s council of seven members, in Maine.

Judges of various courts are elected by the legisla-
ture in the following states: Vermont, Rhode Island,
Virginia, South Carolina, Georgia, Louisiana, New
Jersey.

In the exercise of the electoral function the legis-
latures are often subservient to the dictates of party
expediency. This was of course peculiarly the case in
the United States senatorial elections, but the elec-
tions of state officers are also occasionally used for
the specific advantage of the party organization.
Thus for instance in Maryland the recent practice
has been to elect as state treasurer, the chairman of
the Democratic State Central Committee. He is thus
enabled, through the control of the deposit of state
funds, to assist the organization materially.

The power of appointment which the governor has
in respect to some inferior officers and some of the
state commissions is in many commonwealths made
subject to confirmation by the Senate. It has been
held in Michigan^ that the Senate has the power to

^ Dust V. Oalonan, 86 N. W., 151.

223

AMERICAN LEGISLATURES

witlidraw its consent to an appointment to office;
since in concurring in sncli appointment it exercises
a legislative function, revocable under ordinary par-
liamentary rules, and not a quasi-exeeutive duty, in-
capable of revocation. It must, however, be remarked
that courts have usually held the exercise of the ap-
pointive power to be an executive function. Thus it
has been decided in diametrical opposition to the
above case, that it is not necessary, in a call for an
extra session of the legislature, to mention the con-
firmation of appointments to be made, because the
limitation upon extra sessions applies only to acts of
legislation.^

The question as to the nature of the appointing
power and as to the proper location of its exercise
has received considerable attention on the part of the
courts. Thus it has been decided that the exercise
of the appointing power by Congress is precluded by
the fact that the Constitution vests it in the Executive
part of the Government.^ The Supreme Courts of
Indiana and of Illinois have been especially strict in
their adherence to the principle of the separation of
the three departments. The constitutions of these
states distinctly provide that no officer shall exercise
the functions of any other department than that to
which he belongs. The Indiana Court has repeatedly
held that a legislature in prescribing by law how
appointments are to be made cannot vest in itself
the election of a state officer, nor can it make appoint-

^ People V. Blau ding, 63 Cal., 333,

2 Wood V. United States, 15 Court of Claims, 151.

224

LEGISLATIVE APPORTIONMENTS

ments directly.^ Nevertheless this Court also decided
that as the legislature had frequently and uniformly
assumed control over the appointment of officers of
the state charitable institutions— a control which had
been acquiesced in by all departments of the govern-
ment— the legislative appointment of a trustee of
such an institution would be held valid.^ In Kentucky
the legislature in 1898 attempted to secure control of
the entire electoral machinery by creating a State
Board of Election Commissioners, appointed by itself.
The Supreme Court has, however, declared this act
unconstitutional on the ground that it delegated exec-
utive duties to the legislature,^ although it had pre-
viously sustained the act against the contention that
the exercise of the appointive function by the legis-
lature impaired its validity.

The constitution of Ohio provides that ‘^no ap-
pointing power shall be exercised by the General As-
sembly, except as prescribed in this constitution and
in the election of United States senators.^’ The prac-
tice had grown up among members of the Ohio legis-
lature to barter votes for offices in exchange for votes
for laws. To remedy this, the Constitutional Conven-
tion of 1851 was called. In this convention the pur-
pose of the clause above was stated as being ‘Hhat no
appointing power— not the least vestige— should be
left to the General Assembly.’’ Among the most

^ State V, Denny, 118 Ind., 382. State v. Peelle, 121 Ind.,
495. See also, for a similar principle, Taylor v. Stephenson,
2 Idaho, 166, and Eathhone v, Wirth, 150 N. Y., 459.

2 Ilovey V. State, 119 Ind., 386.

^ Pratt V. Breckinridge, 65 S. W., 136.

225

AMERICAN LEGISLATURES

prominent reasons urged and advocated for the adop-
tion of the new constitution was the forbidding of
the legislative power of appointment. In April, 1858,
the legislature passed a state house and a peni-
tentiary act which provided ^^that there shall be
appointed by William Kennon, Asahel Medbury and
William B. Caldwell, or a majority of them, three
directors of the Ohio penitentiary,’’ etc. The state
house act contained a similar provision. In State v.
Kennon (7 Ohio St., 546), the Supreme Court held
these acts to be legislative evasions and unconstitu-
tional, for the power to direct the manner of appoint-
ment did not include the power of naming an appoint-
ing board in defiance of the constitutional provision.
In jurisdictions where this limitation is placed upon
the legislative power, it has, however, been held that
the legislature may confer additional duties and
functions upon officers already chosen. Thus it may
pass an act providing that the commissioners of high-
ways in a town shall also be drainage commissioners,^
or that the chief of engineers in the United States
Army and the engineering commissioner of the Dis-
trict of Columbia shall be members of a Park Com-
mission in the District.^

In a number of states it has been held that the
power of appointment to office is not exclusively an
executive function, but, as far as it is not regulated'
by express provisions of the constitution, it may be
controlled by statutory law or even directly exercised

^ Kilgour V, Drainage Commissioners, 111 IlL, 342.

2 Shoemaker v. United States, 142 U. S., 282. See also
Walker t?. Cincinnati, 21 Ohio S., 14.

226

LEGISLATIVE APPORTION-MENTS

hy the legislature itself.^ In Maryland it was held
that the appointment of city police is not exclusively
an executive act which the legislature cannot per-
form^; and in Kentucky, the election law of 1898
providing for appointment by the legislature of the
State Board of Election Commissioners is not uncon-
stitutional for that particular reason/^

^ Travellers ^ Insurance Company v. Oswego, 59 Fed. E., 58
(Kansas). People v. Freeman, 80 Cal., 233. Commissioner 'i;.
George, 20 Ky. Law Reporter, 938,

^ Baltimore v. State, 50 Md., 376.

* Purnell v, Mann, 48 S. W,, 407. See above, p. 225.

227

CHAPTER VIII

THE PERVERSION OP LEGISLATIVE ACTION

In American practical politics, constitutional re-
quirements are often treated with, scant courtesy ; in-
deed, the institutions and principles of the public
|law have in some instances been effectually super-
Iseded by an extra-constitutional system of political
I influences based on economic or financial power. Eco-
nomic interests as such are not accorded representa-
tion in our political system, which is founded theoret-
ically on the representation of numbers, for the ascer-
taining of the general will and the consummation of
the common welfare. So great is the prejudice against
Ipersons connected with important economic enter-
I prises that, no matter how excellent their qualities
^of character may be,' they are considered unpromising
i candidates for public office on a party ticket. But
by a curious inversion these very interests which are
in theory excluded from a direct influence upon our
democratic institutions, have in practice in many
commonwealths acquired an absolute control of polit-
ical action. Indeed, by force of circumstances there
has been evolved a system of representation of inter-
ests, in which unfortunately the general interest of

2f>8 ■

THE PERVERSION OF LEGISLATR^E ACTION

the state does not always hold its own. For the
interests represented are special, being composed of
powerful economic combinations which use the politi-
cal machinery of republican institutions for the pur-
pose of procuring exemptions and privileges which
serve still further to augment and to entrench their
preponderance. Thus it has come about that the ver}^
institutions which are founded on the idea of a com-’
mon "welfare, developed and protected by the action
of the general will, have in many cases been made the
instruments for the creation of a regime of speciar
privilege. This is due to the simple fact that whilei
people in general are busily pursuing their own pri- |
vate affairs, the public interest is allowed to fall into
the hands of men who see in it simply the source of
private advantage and who are ready to permit their
political action to be controlled by whatever interest
or group is most liberal in its treatment of the prac- ^
tical politician.

When our government was founded the statesmen
of the day were animated by the living traditions of
English polities. These traditions indeed did not
exclude the practice of corruption— we need only re-
member what eighteenth century Whigism stood for
in practical politics— but there was after all among
these men a strong sense of commonwealth,” of
the public interest, and an honest ambition to do a
substantial service to their state and country. With
the incoming of the democratic regime, there was
added to these traditions the general welfare theory
of Rousseau and of Bentham as interpreted by
Thomas Jefferson. For a time this idea had actual
229

AMERICAN LEGISLATURES

force and inspired statesmen to nnselfisli and public-
spirited action. Nor were the interests of the country
at that time so diversified as to make it difficult to
remain within the Constitution and within the general
welfare theory in adjusting the claims of the various
component parts of the state.

But as the economic development of the country
advanced and the unprecedented opportunities for
gaining economic power were recognized, the men of
high ability 'were more attracted to the fields of
industrial enterprise, and human material of a rela-
tively inferior grade began to people the political posi-
tions, especially in the state legislatures. The im-
petus given to these economic tendencies by the Civil
War led to an era of unrestrained individualism. In
the intense struggle for opportunities and privileges
men were animated, as in that other great individual-
istic age, the Renaissance, by the sole consideration
of personal success. Public rights and general wel-
fare were ignored and often practically treated as non-
existent.

The opportunities which our political system of-
fered for the rapid extension and solid entrenchment
of economic power were soon perceived by the shrewd
leaders in this struggle. These men noticed that while
every one was anxious to acquire wealth, nobody paid
any attention to the institutions through which un-
limited economic power could be acquired— the state
legislatures. Whoever should interest himself in thei^e
bodies and pay his respects to the neglected statesmen
of the commonwealths, they saw, would be amply re-
■warded. The great railways, having most to gain

230

THE PEEVEESION OF LEGISLATIVE ACTIOIST

were the first to perceive the opportunity. In these
earlier days things were often managed with little
adroitness. There was much indiscriminate and
broadcast bribery ; to buy men for a moderate amount
per vote was the acme of ambition to the successful
lobbyist. Such unskilful and clumsy methods of cor-
ruption were easily discovered and, though they served
their purposes over and over again, at times brought
discomfiture to their originators. In Pennsylvania,
disgust with wholesale corruption led to the calling
of a Constitutional Convention in 1872, which gave
the whole matter of legislative organization and pro-
cedure the most careful consideration and framed ex-
cellent constitutional enactments. Unfortunately
many of the latter were afterwards politely ignored
or less considerately brushed aside by the all-efficient
unanimous consent’’ under machine rule. The in-
vestigation of the scandal of the Milwaukee and La
Crosse Eailway Company inWisconsin (1858), showed
that about $900,000 worth of bonds had been dis-
tributed among legislators and prominent politicians
in the state. Conditions like these have probably ob-'
tained in all the states at some time or other. They
still exist in some localities, but in most of the states
the special interests have developed a far more effi-
cient system of dealing with legislatures than hap-.,
hazard corruption.

As a natural outcome of the competition between!
powerful corporations for legislative favor, there was |
developed gradually a hierarchy of interests, or some i
specially powerful interest became controlling and|
made the other seekers for privileges its vassals. As

231

AMERICAN LECISLATURES

me railways, on account of the extent of their busi-
I pess and their quasi-public character, had most to gain
I pr lose through legislative action, they naturally strove
i Jfor the primacy of influence, and early in the history
I |)f corruption in many commonwealths made good
i their claim to a controlling position. Though nearly
all seem to have been willing to enter the race for
power, the most flagrant instances of wholesale and
systematic corruption are found among those corpora-
tions, w^hose plans embraced the conquest of a number
of commonwealths. During the formative period when
new grants, privileges, and exemptions were sought by
the railways, and when their legal status still largely
remained to be determined, the influence of this par-
ticular interest became so pervading that we may in-
deed speak of the railway period in our legislative
history. When in certain commonwealths the rail-
ways had secured all the franchises, exemptions, and
privileges which the legislature could bestow upon
them, and when they had given a form to these ‘ ^ inci-
dents which could be relied upon as fairly perma-
nent, the railways began to take a somewhat less
direct interest in politics, confining their activity
principally to the prevention of unfavorable legis-
lation. Indeed, in some instances they felt able to
dispense with the finely wrought and efficient mechan-
ism wffiich they had constructed ; this they now hired
out to some other ^'interest” which had not as yet
sufficiently fortified its position. We thus enter upon
the public utility or public service period of legisla-
tive corruption. The “trolley crowd” and the '^gas
combine” became potent factors in legislative

232

THE PERYERSION OP LEGISLATIVE ACTION

life. As they desired to use the public highways,
their need for political support was especially strong.
Interurban electric railways had to get the whip-
hand over refractory town councils, and corporations
of this kind needed long term franchises to make
their stock and bonds readily salable. The manu-
facture of electricity being a connecting link between
''trolley’^ and ‘4ight/’ they often worked hand in
hand, or formed one great ‘^public service corpora-
tion/’ The incidental irony of this name, it would
seem, is fully appreciated by the men who use it. An
understanding of the later developments will make it
clear that it is impossible to dissociate municipal
administration from the affairs in the state legisla-
ture, until a complete system of municipal home rule
has been developed. Municipal government thus ac-
quires an importance far transcending the limits of
local affairs ; through the uses to which it may be put
by powerful combinations, it becomes a matter of
central moment in American public life.

The age of competition is everywhere giving way
to an era of solidarity. Originally the lobby con4
sisted of independent adventurers struggling to ob-\
tain for their clients legislative favors. Later, groups
were formed corresponding to the various interests I
represented, which were stilf vigorously competing |
with each other. A higher form of solidarity is
reached when one interest has obtained the unques-
tioned ascendancy so that it enjoys the power to
restrict other groups within a limited sphere, and to
harmonize their conflicting interests by imposing a
spirit of compromise upon them. Of course no in-

233

AMEEICAlSr LEGISLATURES

terest, liowever powerful, needs all the attention of
the legislature for its own affairs. The idea, there-
fore, occurred to the representatives of the leading
interest that as they required only a portion of the
legislative energy for their own purposes, it might
he profitable and advantageous to dispose of the by-
product of legislation to such lesser interests as were
able to return a proper consideration. The claims of
lesser men could thus be dealt with upon the basis
of commercial justice. This tendency toward mutual
adjustment has constantly grown and the lobby has
been organized in many instances as a complete hier-
archy. The controlling interest, whether railway,

( trolley, or gas, is willing to allow a fair share in
legislative influence to be enjoyed by others. This
is commercial government in its perfection, where
in the words of a ‘ ‘square boss,’^ ^^Any business man
I can get what he needs at a reasonable price. ’ ’

As a result of the developments briefly reviewed,
direct money bribery has perhaps become less com-
mon than it wms in the simpler days. When the great
interests owm the legislature or a controlling part of
it, it is of course not necessary for them to buy supr
port on individual measures by pecuniary bribes.^
It is well known that the control exercised is ofter.,
an indirect one, reaehing the individual legislator
through some person who may be said to be his
political owner. Cases are, in fact, not infrequent

^ The former is from the point of view of the 'interests’*
altogether the most satisfactory method, for, as an elder
/statesman’* sadly (and blasphemously) remarked, the men
you have bought" won *t stay bought. ”

.234 ,

THE PEEVEESION OP LEGISLATIVE ACTION

where legislators seem unaware of the fact that they
are owned, and their protestations of public virtue
must have a peculiarly exhilarating sound to the
ears of the actual proprietors. The lobby organized
under the most advanced system often becomes a
third chamber, a senate, or an advisory council in
states where an autocratic boss exists. The repre^l
sentation of interests, ruled out by our constitutional I
theory, has become a fact in many state legislatures. |
Nor are the lobbyists ordinarily men of mean ability
or criminal character. They are indeed often , of eoii^
siderable mental capaci ty and they generally have
far more experience of legislative action than the
average member. The boss and lobby work in com-|
mon with the group within the legislative body which/
is favorable to the powerful interests thus reprel
sented. It is of course not necessary for these inter-
ests to own even a majority of the legislators; a
smaller group, comprising members of both parties,
well organized and backed by the ability and influ-
ence of the lobby, is in ordinary times sufficient to
maintain a safe control of legislative action.

Under this system great powers have to be placed
in the hands of some trusted person; moneys have
to be received and expended, although not in the
mdiscriminate fashion formerly employed; men have
to be wheedled or threatened; the execution of the ;
laws has to be delayed and pardons secured ; persons |
of all sorts have to be induced to work in harmony I
and with expedition ; and all these activities have tof
be carried on without publicity, without open con-|
sultations. A great amount of trust thus has to be'
235

AMERICAN LEGISLATURES

|put in certain managing individuals. Great adroit-
mess and tact, cool calcnlation, quick decision, ability
jto coerce men without unduly hurting their feelings—
lall these are needed for successful leadership. Tri-
lumvirates are often formed where a supreme genius
pas not appeared or where he has left the stage. But
the universal tendency is toward greater concentration,
and sooner or later there is evolved the boss, the fruit
and flower of commercial politics in America. He
represents main interest but also holds the bal-
ance between the minor tributary groups. The
secrecy necessary for his work gives him great power.
He alone holds all the threads that bind the system
together. In his person are united the confidence of
the favored interests and the hopes of his political
lieutenants. He commands the source of supplies.
|He has mastered the study of political psychology
land knows by intimate experience the personal char-
}acter of the prominent politicians in the state. Most
of them are dependent upon him for future favors or
are bound to him through past indiscretions. The
character of the system demands an absolute ruler.
For this reason, too, the power of the FbsFlFco^^^
tinuous ; it is rarely overthrown from within and
only a great public upheaval can affect it. Bosses
maintain themselves in the saddle and enjoy a
lon g le ase of power, because of their direct and eon-
l^fidential relatiohswith the controlling interests; their
Hnborn seeretiveness leads them to keep their own
I counsel, and not to allow any other person a com-
iplete insight into all the intricacies of the system.
They grow stronger as the years pass and no indis-
236

THE PERVERSION OP LEGISLATIVE ACTION

cretipn or even crime is able to shake their authority
while they keep in their hands the main threads con-
necting influence with its obedient tools. The abler
men of this type are filled with a keen sense of the
irony of their position. They have the clear insight
into the coarser actualities of politics that character-
ized Machiavelli. The political exhort er who sways
the multitudes from the stump does not become a boss ;
to achieve that position the power of cool analysis,
of impassive control, and of unflinching execution, are
more essential than any gifts of popular leadership.

We are thus brought face to face, in our political
life, with the growth of a compact system outside of
the constitution and the public law. The legal forms
are given at most an empty observance: there are
nominating conventions, but the candidates are dic-
tated; there are elections, but the registry and the
returns are fraudulent. There is perhaps at present
more direct bribery at elections than in the legisla-
tures, especially in states where peculiar conditions
of suffrage exist, particularly in Maryland, Connecti-
cut, and Rhode Island. In the legislature the groups *
representing the industrial system have the power of
organization on their side. They have been able
again and again, and for whole sessions at a time,
to turn parliamentary procedure into a mere formal- y
ity for impressing the character of law upon the dic-
tates of the special interests. An artificial common
consent is easily created by which all constitutional
limitations upon parliamentary practice can be sum-
marily evaded. The real power in such cases is
usually behind the throne. We hear of a potent boss
237

AMEEICAH LEGISLATUEES

dictating amendments from behind a curtain that
shields him from view, but enables him to follow
minutely the proceedings of the legislature. The im
I fluence of party affiliations is used at the convenience
of the controlling power to whip into line the doubt-
1 ful members by a threat of the charge of party dis-
( loyalty. But ordinarily the organization is non-
I partisan or bi-partisan in its character, having its
j representatives on both sides of the house. In this
I manner its power ceases to be conditional upon fairly
^ unanimous party support, and it can afford to ignore a
large minority of independent spirited members of
the ruling party.

The same disregard for constitutional require-
ments and for the demands of public policy which
manifests itself in the method of legislative short-
cuts, extends to the substance of legislation. Any
I institutional arrangement, however well established,
I will be capriciously and tyrannically modified when-
I ever the temporary needs of the organization demand
* it. This_^ipping’’ of public institutions is one of
the most striking 'Characteristics of the commercial
system of politics.^ Whether the governor alone or in
conjunction with the Senate shall exercise the power
of appointment, whether the veto power is to be
accorded to mayors, whether the aldermen or the
legislature shall control franchises, whether the police
is to be under the municipal governments or under a
state board; all these questions are settled solely ac-
cording to the needs of the organization in fastening
its control alike upon local and state governments.

^See below, p. 266.

238

THE PEEVERSION OP LEGISLATIVE ACTIok *’

Should it be unable to fill the position o£ mayor with ' '

its nominee, it will destroy tlie powers of that posi- rU'isry. -
tion. Should the voters of a particular city become
refractory, the administration of municipal fiinc- >' '

tions will be transferred to a state board. Indeed ,

the boss and the controning the king,

can do no wrong, because whenever any la^v stands ^ *

in their way it can be changed bydl^em to suit the

present They not only hold the actual

power, but, should their position be threatened, they T
can shift the institutional basis of authority at their

wuli as the exigency of the moment may jecxuire. "

If the sanctity and permanence of law receives ho ‘

consideration in the mind of these rulers, no more is
given to the hmnan material consumed in achieving
their purposes. Their servants are indeed paid liber-
ally in money and preferment, but they are reduced
to a position of dependence in which the soul is burnt
to ashes. The cynicism of the political boss and his
satellites and the temptations which they hold out,
are the greatest corruptors of youth in our age. The
young graduate beginning his professional life finds
the industrial and commercial world far more in^
trieate than he had anticipated. His knowledge
seems insignifieant, he lacks experience, the world
seems apathetic, and the mastery of its elaborate
processes and methods well nigh unobtainable. Wlien
at this time the representative of a controlling in-
terest, who usually has a good eye for striking promise
of ability, approaches the young lawyer, retains his
services, and opens up the way to preferment, he is
working with a great advantage; and there are few
239

AMERICAN LEGISLATURES

men who will under such circumstances have fore^
sight enough to fathom what will ultimately be re-
quired of them by their new friends. By blocking
I the road of legitimate ambition, the men that have
; been enlisted are then gradually forced to make
themselves the passive tools of their employers. The
system is in need of able representatives and of
mediocre legislators. It will therefore do its best to
impede the advance of public-spirited and inde-
pendent men in political life. It is not surprising
that polities does not in general offer a satisfying
career. Able men of high character are disgusted
with the usual demands made upon politicians.
I While youth is corrupted, manhood is tyrannized ;
I and wherever the commercial system has been most
i successful, property, honor, and even life have been
j rendered unsafe. We do not here refer solely to the
scandalous vieiousness of the metropolitan police, but
to direct and implied threats against the life and
property of men for the purpose of cowing them and
making them entirely dependent upon the pleasure
of the political despot.^

The organization which we have briefly described
in its methods and results exists in various degrees
of perfection. Some of the states are indeed com-
paratively free from it. They have either maintained

1 See examples brought out by R. Blankenburg in ^'Masters
and Rulers of the Freemen of Pennsylvania,” in “ The Arena,”
1905; a moderate and responsible, though indignant, account
of Pennsylvania’s politics. Also Lincoln Steffens’s “ The
Struggle for Self-Government,” 1906. C. P. Connolly, “ The
Story of Montana” in “McClure’s,” 1906.

240

THE PERVERSION OP LEGISLATIVE ACTION

a fairly lionest character in their political life, or
they still live in the Arcadian simplicity of the first
period of indiscriminate corruption. In some of the
commonwealths, on the other hand, in which the
organization has been perfected, it is from time to
time threatened by great popular movements in oppo-
sition to it and forced to suspend operations for a
time. But in the words of a once famous railway ,
and insurance senator, “Such storms blow over/’ at
ordinary times, and the political boss, emerging from i
his cyclone cellar, soon succeeds in “repairing his |
fences.” So indeed even the present storm of popu-^'
lar indignation also may blow over, unless the real
nature of the situation is clearly perceived by the
people. They must learn to understand that the
combat is not so much against individual wickedness
and corruption as against a system of extra-legal and
extra-constitutional despotism, which rules with the
absolutism, and narrowness of aim and sympathy
ordinarily attributed to Czardom*

When a legislative group is organized under the
supervision of a boss for the purpose of carrying on
the government in accordance with the needs of special
interests, the party machinery is made use of as much
as possible for the purposes of whipping into line
doubtful or independent members. The group must,
indeed, control a majority of the party in power so as
to be able to nominate the legislative ofScers and com- ^
mittees. But the organization leaders can afford to
ignore the minority members in the governing party
because they will ordinarily be able to draw on the
party of opposition for sufficient support to carry
16 241

AMERICAlSr LEGISLATURES

tlieir measures. This in fact is the favorite arrange-
\ ment. Parties are after all public institutions whose
I work has to be carried on more or less in the open.
Were the organization to rely solely upon the domi-
nant party the independent members would constantly
be a thorn in the flesh. The party in its character
as a public body would be loath to assume the re-
sponsibility for the legislative work demanded by
the system. The control of a strong group within the
;; dominant party will ordinarily be a sufficient basis
I for the power of the organization, as there will
I usually be a corresponding group in the minority
I party, who will be ready to associate themselves with
I the system in return for a share of legislative influ-
' ence. The most efficient legislative machines have
therefore always been more or less bi-partisan in char-
acter, and have used the name of the dominant party
only to blind the public as to their real purposes. In
the evil days of the Illinois legislature from 1897 to
1903, the Senate combine consisted of a strong group
of experienced Republican senators closely affiliated
with a lesser group among the Democrats. Only one
Republican Senate caucus was held during the session
of 1903, that on the convict labor bill, upon which
disagreement was a foregone conclusion. All the
business of the Senate was managed by a steering
committee consisting of five organization senators. In
the arrangement of committees far more positions
were given to the Democratic senators than to the
members of the Republican minority, although the
latter were equally as numerous as the Democrats.

For the management of the House, the organiza-

242

THE PERVERSION OF LEGISLATIVE ACTION

tioii relies primarily upon the |)Ower_o| the ^

He appoints and controls the committees, and through |
the steering committee or the Committee on Rules |
often exercises a complete mastery over the course of I
business. His power is ordinarily proportionate to I
the influence of the organization, and in extreme
eases, he may be confident enough to ^ ‘ gavel through ’ ’ I
the organization bills by using the fiction of eomnionj
consent. The system favors the democratic principle
of rotation in office for the Lower House. If the
members are new and ineg)erienned and of moderate^'
ability the task of organizing^^t^^^^^
able dp the associated inte^ will be comparatively
^easy. The effort is made to draw the holdover orl
re-elected members into the organization by offering I
great inducements, and thus to secure a monopoly of j
all legislative experience within the House. There
has been quite a remarkable shortening of the average
term of service in some commonwealths. In Con-
necticut, at the beginning of the nineteenth centuiy
more than one-half the members were ordinarily re-
elected, now, the return of an old member has be-
come an exception. In 1900, only 43 among the 255
members were men who had served in the House
before.

The creation of a bi-partisan combine is facilitated
in states where one Of the parties is in a constant
and almost hopeless minority. The safest chance its
members have for exercising legislative influence is
through an alliance with the organization forces
within the dominant party. If the dominant party
were to act as a responsible public body, it would as

243

AMERICAN LEGISLATURES

mucli as possible ignore tbe party in opposition ; bnt
as the really controlling force is a bi-partisan organ-
ization of commercial government, those who are ig-
nored are the independent spirited members of both
parties— that is, all who do not effect a compromise
with the governing power. The Missouri bi-partisan
Senate group, as it existed until recently, is an ex-
ample of the worst kind of this type of organization.
The organization in Missouri had the distinction of
combining the most highly developed system of con-
trol with the most brazen methods of wholesale money
corruption. The same bi-partisanship has prevailed
in Pennsylvania. The Democratic machine in that
state has, in fact, often been a mere annex to the
governing organization. The character of the mutual
support is illustrated by the election of magistrates
in 1905. The law gives the minority a certain repre-
sentation on the bench. In this election there was
reason to believe that the Republican opposition would
poll enough votes to elect their candidates for these
minority positions. The Republican machine there-
upon lent a number of its corrupt voters to the Demo-
cratic managers, thereby enabling them to elect their
nominees. The cumulative system of voting has
jproved itself exceedingly favorable to such manipula-
ftion. The machine of the dominant party will invari-
[ably help elect the representatives of the opposition
Jif they promise subserviency to its main purposes.
The state of New Jersey offers many striking illus-
trations of bi-partisan rule. The Republican gerry-
mander of 1881, resulting in the election of a Repub-
lican legislature while the Democratic majority of the

244

people elected tlie governor, laid tlie foundation for
tMs system. In Ehode Island a Democratic politician
was for a time allowed to act as leader of tlie Re-
publican Senate. Of course the organization leaders
are loud in their protestations of party loyalty, but
they are strangers to any idea of consistent party
action and of party responsibility for the general
welfare. Their power is, in fact, conditioned upon^
making such action impossible and carrying on ordi-
nary legislation by deals between members of both’
parties.

This bi-partisan character of machine methods is
prominent also in municipal affairs. Where big
cities are tangled up with a county organization, it is
a favorite arrangement to allow one party to control
the county, the other the city. Bi-partisan boards
like the old New York Police Board are dear to the
politician’s heart, because under them government
through deals is a natural result. In some states
there exist peculiar organizations due to local condi-
tions. The Connecticut legislature has its Farmers’
Association, which meets practically every morning
during the session and debates the questions at issue,
and the decisions there arrived at are registered by
the General Assembly. The Empire State embraces
within its realm so many powerful interests, and the
parties within it are so evenly balanced, that there
has not been a constant dictatorship by one bi-partisan
boss, but rather the bosses of the two great parties
have governed the state by making mutual arrange-
ments. The New York Senate has, however, had
organized groups as bold and corrupt as any, although

AMEEICAN LEQISLATUEES

their power is not always absolute; the activities of
the Black Horse Cavalry” in corrupt legislation
are sufficiently notorious. The bosses of New York,
on account of the nearly equal balance of parties in
that state, are in a position to use the cry of party
loyalty to great advantage for their own purposes.
\They therefore make more use of it than is ordinarily
(the practice of the ^'organization.” When the inti-
mates of a boss pass the word that a bill is a party
measure, obedience is ordinarily quite general, al-
ithough no one has any knowledge of what forces are
back of a measure upon which even the legislative
leaders may, in fact, never have been consulted at all.

. The influence which is brought to bear by the leaders
pf the organization in order to control individual
piembers is exceedingly varied and always adapted
the conditions of the particular case. The organ-
lization can, to begin with, count on the legitimate
influence which justly belongs to the strong interests
which it represents. But as these interests almost
invariably desire more privileges than they are en-
titled to upon an impartial basis of general welfare,
and as the politicians with whom they have associated
themselves are moreover ambitious for complete con-
trol, they simply use such legitimate influence as a
nucleus about which to construct a powerful system
of government. The most effective weapon in the
hands of the organization, when it confronts men of
independent spirit and good character, is the warning
that their usefulness will be destroyed, unless they
ally themselves with the strong interests. The lead-
ers urge with truth that legislation is a matter bf

246

THE PERVEESION OF LEGISLATIVE AGTION

compromise, tliat you cannot expect to put your I
measures through singlehandedly ; and they offer their j
influence in return for a member’s vote. If he con- ’
tinues refractory they ignore or oppose him, and he
finds it exceedingly difficult to procure a hearing for
his bills. Moreover, he will receive very scant credit
for his active and vigilant attention to the interests
of the public. When he has headed off one corrupt
measure, twenty will spring up to take its place.
Unless a man of extraordinary character and ability, \
he is generally forced by the very insistence of his
constituents to make some kind of a compromise inj
order to ^ Unstore his usefulness.”

Where the system through its influence with hold-1
over members has gained control of the House organ- 1
ization, its power to assign members to committees I
gives it abundant means of enticement, and many |
men mortgage their legislative independence at the I
very beginning of the session for the empty honor”^
of being placed on a prominent committee. The ap- >
pointment of committees is often delayed for weeks \
and months, in order to give the organization an
opportunity to test its material before grouping it
for actual business. During the early part of the ;
session, patronage is also used for the purpose oft
enlisting recruits for the machine, in states where
the patronage is not equally divided per capita. The j
methods of indirect bribery are numberless. A cor-
poration which has heavily subscribed to the cam-
paign expenses of a legislator, feels entitled to his
vote whenever its interests are involved. There are
many favors at the disposal of pow^erful corporations
247

AMERICAN* LEGISLATURES

whicli do not come under the statute of bribery, but
which serve the same purpose. Employment given
. to the relatives of a member,^ opportunity to pur-
! chase at favorable rates stock and other property,
I rebates on transportation charges, and free passes,
S are favored and common methods. Though the giv-
^ ing of passes was forbidden by the constitution of
Pennsylvania, yet they were for a long time freely
distributed as there was no legislation to enforce the
constitutional prohibition. The connection of legis-
lators with the stock market is often very close and
most corrupting in its influence. In Illinois, the gas
combination bih of 1897 was deliberately juggled,
authoritative reports with respect to its progress in
committee being given out from time to time in order
to enable members to take advantage of the conse-
quent fluctuations in the market price. In 1905, the
notorious ‘^Ten’’ carried through a scheme in the
New Tork Senate, by which the Chicago and Eastern
Illinois Railway bonds were to be included in the
savings bank bill as proper securities for investment.
The Black Horse Cavalry’’ had succeeded in a
similar deal formerly, and members had made a large
profit on the consequent appreciation of the bonds in
question. A favorite method by which lobbyists
transfer money to legislators is through a friendly
^Joint rnie No. 30 of the Massachusetts legislature provides
as follows: A member of either branch who directly or indi-
rectly solicits for himself or others any position or office
within the gift or control of a . , . public-service eorporatiou,
shaE be subject to suspension therefor, or to such other pen-
alty as the branch of which he is a member may see M to
imposed’ (Adopted May 22, 1902.)

248

THE PEEYERSION OP LEGISLATIVE ACTION

game of poker. Even though no direct arrangement
has been made with the legislator this method proves
very efficient, as a man who continually allows him-i
self to be beaten at poker is a valuable friend indeed}
to the needy legislator. This manner of payment has
the great advantage of being perfectly safe before
the law and at the same time so notorious that a
legislator who has been allowed to win large sums
of money, would hardly dare to go back upon his
lobbyist friends when the critical vote comes up.

But it is not always necessary that means be re-
sorted to which involve offices or money considera-
tions. The inexperienced legislator without money
or friends becomes acquainted with some tactful^
lobbyist; through him he is introduced to infiuential|f
members and also, if he desires, to the social life
the capital. He is given assistance in preparing his|
bills, material is collected for him when he wishes to !
make a speech, or to favor or oppose some measure]
in committee. Thus difficulties are smoothed over,
information supplied, and social pleasures made ac-
cessible by a cordial friend who never mentions legis-
lative business. Should, towards the end of the ses-
sion, this friend casually remark, ^^By the way, bill
No, 212 comes up to-day. It ^s a good bill and I want
to see it pass. I hope you will give me your assist-
ance'^; there are few members that have gone thus
far who will refuse this request, and the purpose of
the lobbyist has been accomplished. It has been J
common for prominent corporations to have head- |
quarters in the capital city at some house where open i
hospitality is dispensed. In the New York insurance

249

AMERICAN LEGISLATURES

investigation it came out that the New York Life in
ten years paid out $1,11T,697 for ''the supervision
of matters of legislation.’’ This sum was paid with-
out adequate vouchers to one man to he used by him
at his discretion. The results of the investigation
are summarized by the committee in the following
language:^ "Nothing disclosed by the investigation
deserves more serious attention than the systematic
efforts of the large insurance companies to control
a large part of the legislation of the state. They
have been organized into an offensive and defensive
alliance to procure or to prevent the passage of laws
affecting not only insurance, but a great variety of
important interests to which, through subsidiary
companies or through the connections of their officers,
they have become related. Their operations have ex-
tended beyond the state and the country has been
divided into districts so that each company might
perfoim conveniently its share of the work. Enormous
sums have been expended in a surreptitious manner.
Irregular accounts have been kept to conceal the
payments for which proper vouchers have not been
required. This course of conduct has created a wide-
spread conviction that large portions of this money
have been dishonestly used. ...

"The large insurance companies systematically
attempted to control legislation in this and other
states which could affect their interests directly or
indirectly. . . . The three companies divided the
country, outside of New York and a few other states,

^Report of the Cominittee, New York Assembly DocumeEt
No. 41, 1906, pp, 394 et. seq. and p. 19,

250

THE PERYEESION OF LEGISLATIVE ACTION

so as to avoid a waste of effort, each looking after
legislation in its chosen district and bearing its ap-
propriate part of the total expense. . . .

“It has been insisted that the insurance companies
have been so continuously menaced by the introduc-
tion of improper and ill-advised legislative measures
in many states that they have been compelled to
maintain a constant watchfulness and to resort to
secret means to defeat them. An insurance corpora-
tion, however, holds a position of peculiar advantage
in opposing any legislative measure w^hieh really
antagonizes the interests of policy-holders. . . .

“The pernicious activities of corporate agents in |
matters of legislation demand that the present free- |
dom of lobbying should be restricted. They have I
brought suspicion upon important proceedings of /
the Legislature, and have exposed its members to I
consequent assault. The Legislature owes it to itself, i
so far as possible, to stop the practice of the lavish |
expenditure of moneys ostensibly for services in con- j
nection with the support of or opposition to bills, |
and generally believed to be used for corrupt pur-j
poses. . .

The president of a large insurance company indig-
nantly denied any attempt at bribing legislators.
He however admitted that the representatives of the |
company had “seen’^ persons who were known to I
have influence over the legislators. This indirect!
approach of legislators through their political god-
fathers is very common indeed. In the words of a
representative of a prominent corporation, “I let
others waste their money buying legislators. I go to
251

AMERICAN LEGISLATURES

|tlie man wlio owns them. He does the work.^’ The
I owners of a legislator are not generally politicians.
I They are frequently business men on whom the legis-
i lator is financially dependent, or who have power to
I advance him in his calling or profession. The advice
I given by such persons is usually followed, and in
many cases the legislator is not aware that his action
is being manipulated.

When the work of reform is systematically under-
taken, the reform forces, through the votes which
they control, can wield a powerful influence even
over corrupt groups. Thus in 1903 when the citizens
of Chicago demanded just traction legislation, the
Senate combine recognized that something had to be
done. Accordingly after some juggling they passed
the Mueller bill, which caused the wreck of the
speaker's organization in the House. In Connecticut
in 1905, to the infinite surprise of everybody, a strong
corrupt practices act was passed in the face of oppo-
sition from the bosses. The reformers were helped
by the fact that the ordinary politicians recognized
that there was some force back of the reform move-
ment, and also that politics had become so expensive
a game that it could be played only by the very rich.
Even the organization people are coming to admit
that a determined group of reformers must be listened
to; and though the practical politicians still have a
vast amount of contempt for the reformer, they have
been forced to familiarize themselves with the idea
that there is such a thing as a public interest which
some men will actually work for without any pecuniary
' return to themselves. But the idea that all legislation

252 '

THE PERVERSION OP LEGISLATIVE ACTION

should be dealt with on this basis is still far from
having a common acceptance. When, in 1905, the
Chicago Board of Trade desired the passage of a bill
legalizing certain trade transactions, it decided to
refrain from all attempts at corrupt influence; but
a certain element in the legislature prevented the
passing of this measure. Reform method^,’’ ‘^lily-
white lobbying,’’ were said to be inappropriate to a
bill which might be desirable for the Board of Trade,
but for which no public propaganda could be made;
for though in no sense a corrupt measure, it was not
one in which the people in general would be inter-
ested. A new distinction was thus evolved. The
legislator will listen to a reformer with a strong
voting constituency. But the man who simply ashs
for a measure to render his business safer or who
wishes the law with regard to it to be more settled,
will be called upon for some quid pro quo by the cor-
rupt element.

It is often stated that the industrial and com-
mercial interests are forced to the adoption of cor-
rupt methods for the purpose of seif protection
against unreasonable legislation or of securing such
laws as are necessary to the proper prosecution of
their business. The president of a New York insur-
ance company declared that eighty per cent, of all
legislative bills referring to insurance are “hold-up”
measures, and similar statements have been made
again and again to defend the practice of corruption.
It is indeed unhappily a fact that the kind of bill
known as a “strike” is of exceedingly common occur-
rence Other designations for it are “hold-up bill,”
253

AMERICAN LEGISLATURES

^^sandbagger/’ ^‘fetelier/^ ^^old friendj’ ^^beU-
ringer’’ and regulator.’^ This last designation re-
fers to the assumed purpose of this class of measures
J to regulate the business of corporations. There is
■ usually no real intention to enact them, but the organ-
ization holds them in reserve in order to punish
some refractory interest or to make its power felt
by the corporations. Often individual freebooters
engage in this kind of business, in the hope that
through the inadvertence of other members and
through log-rolling they may advance such a measure
to a position where it wiU render the interest affected
nervous and ready to come to some arrangement with
the originator of the bill. But this individual free-
booting cannot be very successful unless it is carried
on with the assistance of some organization. In
some legislatures the first months of the session, aside
from unimportant local legislation, have been given
almost entirely to the manipulation of regulators’^
and the securing for them of a good strategical posi-
tion on the calendar of either house. While the or-
ganization is thus occupied, really important public
legislation is allowed to lie over till the rush of the
last days begins. But to argue that the existence of
these conditions forces the corporations, and espe-
cially the stronger interests, into legislative corrup-
tion is certainly not convincing. It is conceivable
that a smaller corporation may be forced to buy im-
' munity in individual cases, but the more powerful
interests which exercise the real control must eer-
,tainly know that money spent to avoid vicious legis-
lation is . worse than wasted, since the appetite grows

254

THE PERVERSION OP LEGISLATIVE ACTION

by what it feeds on. From a study of tlie legislative
action of the great industrial interests it is apparent
that they often do not go into the legislatures pri-
marily for the purpose of self-defense, but on account
of a desire to gain undue privileges denied to others,
and to resist legislation which the real interests of the
public demand. Thus the insurance companies op-
posed legislation to compel them to put the entire
contract into the policy, or forbidding them to allege
that their paid employees are also the agents of the in-
sured. The manner in which the transportation in-
terests have resisted the enactment of laws demanded
by public policy and by ordinary regard for human
life, and have constantly pressed for special privi-
leges and exemptions, is notorious. If their only pur-
pose were self-defense, they would attempt to ally
themselves with the honest legislators and keep them
honest : that would be their best protection. But in-
stead of this, it is the almost invariable practice of
their representatives to associate with the corrupt
elements and to use every device ingenuity can sug-
gest to render honest men corrupt.

At the meeting of the legislative session of 1905
in Missouri, Governor Folk promulgated certain rules
for the lobby. Lobbyists were required to register
every time they came to the capital, stating accu-
rately the business which brought them and specifying
the measures they desired to favor or oppose. They
were not allowed to stay more than thirty hours at a
time in Jefferson City. In return for a faithful
observance of these rules the governor promised the
special interests that he would not allow any “hold-
255

AliERIGAN LEGISLATURES

measure to pass, an agreement whicli he kept
by vetoing several bills wMcb might fairly be sus-
pected of that purpose. As a rod to compel obedience
he held over the heads of the lobbyists the threat of
an investigation. The governor of Kansas ridded the
legislature of the entire Standard Oil lobby during
the controversy of 1905, by threatening an investi-
gation and getting the grand jury ready for business.

When the legislative houses have been organized
in accordance with the desires of the system, it is
then not difficult for the latter to control the entire
course of legislation. The business can be so arranged
that discussion of important matters is delayed until
the larger part of the session has passed and members
become anxious to return home. It is then an easy
matter liberally to suspend the rules and to rush
through the measures agreed upon by the organiza-
tion. During the first three months of 1903, the ses-
sions of the Illinois Senate occupied altogether thirty-
six hours, twenty-one of the sessions being of less
than fifteen minutes’ duration. During these thirty-
six hours 456 bills were introduced and 120 passed,
aU the important measures being held back to be
crowded upon the calendar during the closing days
of the session. During one of these sessions lasting
four hours (April 24), outside of the receiving of
reports and the discussion of the civil service bill,
there were passed thirty-six biUs, including some of
the most important appropriation measures, none of
which were either explained or discussed. During
the same session, the omnibus bill, carrying appro-

256

THE PERVEBSION OP LEGISLATIVE ACTION

priations to the amount of $3,700,000, was read only
by title and passed without a word of discussion.^

Though we have become fairly well reconciled to
the idea that an adequate discussion of public meas-
ures cannot be had upon the floor of a legislative
body, it is usually supposed that at least in the com-
mittees the merits of the various bills are carefully
considered. But not even this is the case in legisla-
tures where the organization is strong. There the
committee is looked upon solely as an instrument for
effecting the purposes of the organization. Large
committees are favored by the system because they
can be controlled through a select ring by the use of
sub-committees; the majority of the members are
kept in the dark and the formal meetings simply give
opportunity to the chairman to get a vote on the
measures desired by the organization. In states where
such conditions prevail the time of committee meet-
ings is never sufficiently announced. Meetings are
called at the pleasure of the chairman and at a time
most suitable for his particular schemes. It is in-
deed quite necessary that aU states should adopt and
enforce legislation like that of Massachusetts, which
requires sufficient notice of ail committee meetings.
Under prevailing conditions, not only interested out-
siders but members of the committee itself often find
it impossible to learn what is actually being done in
the name of the committee, and what forces are work-

^P. W. Parker, *‘A State Legislature Seen from Within,
“Christendom,’’ 1903; a series of articles by a state senator,
giving an excellent insight into legislative procedure.

1*? 257

AMERICAN LEaiSLATURES

mg for tlie measures tliat are being advanced. If it
is tbe purpose of tbe political managers not to allow
a certain committee to exercise a prominent influence
tbe eliairman will not issue a call for a meeting, or he
will fix some inconvenient time when no quorum
can be secured. If he has the backing of the organ-
ization, there is no cheek whatever on his action. He
may declare measures passed by the committee and
report on them, though they have actually never re-
ceived consideration or been assented to. On the
other hand an unwelcome measure passed by the
majority may be carried about by him indefinitely,
and he may find it inconvenient to report on it at all.
As in general it is unwise to stir up bitter feelings,
such methods will be avoided as long as possible and
carefully veiled when they are employed. If a re-
port on an unsavory measure is desired, the chair-
man may refer it to a sub-committee composed of
reliable henchmen. There may be many such meas-
ures before the committee, and the majority of the
members may be otherwise so busily engaged that
they cannot investigate the nature of all these sub-
committee proceedings, and will thus be inclined to
accept the reports which the chairman insists upon.
During the latter part of the session when business
is crowding, committee bills are often sent around to
the various members with a request to sign the favor-
able report on them as they are “all right.’’ Lack of
time for investigation and undue confidence generally
induce a majority of the members of the committees
to affix their names, and the bills are reported.

The constitutional and legal rules of procedure are

258

THE PERYEESION OF LEGISLATIVE ACTION

all modified in practice to accord with the peculiar
methods of the organization. Constitutional safe-
guards are almost futile as long as the organization
has the power to command action by common con-
sent. The reading of the journal is quite often dis-
pensed with, and this document which authoritatively
records the action of the legislative body is usually
not printed till several days have elapsed. The cah
endar which ought to be a safe guide to members is
made up arbitrarily and disregarded in practice.li
Measures are placed upon it, or taken off, or advanced
over others at will by ‘'general consent.” The con-
fusion in the sessions is often such that it is impossible
to follow the course of business, leaving the speaker
absolutely free to interpret according to his own
pleasure and interest what is being done. The rapid-
ity with w’hich the organization can carry through
its measures is illustrated by the street railway fran-
chise bills of 1901 in Pennsylvania. The bills were
referred and reported back in five minutes. They
had three separate readings in the Senate and the
House on successive days, and were then immediately
signed by the governor. Thirteen city councils, tools
of the organization, under authority of these acts,
forthwith turned out the necessary franchises. The
quality of the parliamentary law created by the ma-
chine is illustrated by the decision of the speaker of
the Pennsylvania ALSsembly on the Erie water front
bill. Four members had been wrongfully recorded as
voting “ Aye, ” their votes being necessary to pass the
bill. Objection being made when the journal was
read, the speaker ruled that the roll-call record could

259

AMERICAlSr LEGISLATURES

not be changed. This extraordinary ruling of course
put it into the hands of the speaker to pass any bill
he pleased by simply instructing the clerk to record
a sufficient number of names as voting ‘‘Aye.’^

The true inwardness of organization gavel-rule is
excellently brought out in the following paragraphs
in a pamphlet on the Illinois Legislature prepared by
the Illinois Legislative Voters’ League in 1903:

'‘'To explain the importance of House organization
it is necessary to discuss the parliamentary rules and
tactics used in steering a bill through the House.
The road is long and hard without the friendship of
the committee to which the bill is referred and of the
speaker, who can wield the gavel to help or hinder its
progress. The bill must go to committee, be printed,
be reported out to pass and be read on three different
days. It may be amended after the second reading;
it must be engrossed before the third reading. Then
it is in the order of passage, and requires in the
House seventy-seven votes to pass. With a friendly
House and speaker, it may on introduction, by unani-
mous consent (whoUy dependent on the speaker’s
hearing objections if made), be read a first time with-
out reference to a committee, read a second time on
the following day and on the third day passed. This
is the short road. The bill to provide for the inci-
dental expenses of the Assembly invariably follows
this route.

"On the other hand, consider the petty annoyances
to which a decent member outside the ‘organization’
may be subjected, and the methods by which legit-
imate legislation, backed by him, may be blocked.

260

THE PERVERSION OP LEGISLATIVE ACTION

Tlie bill goes to an unfriendly committee. Tbe cliair-
man refuses to call tbe committee together, or when
forced to call it, a quorum does not attend. In ease
a quorum attends the point may be raised that the
bill is not printed, or the chairman may fail to have
the original bill with him. Action may be postponed
on various pretexts, or the bill may be referred to a
sub-committee. The committee may kill the bill by
laying it on the table. On the other hand the com-
mittee may decide that the bill be reported to the
Plouse to pass. Then a common practice is for the
chairman to pocket the bill, delaying to report it to
the House till too late to pass it. When finally re-
ported to the House,' it goes on the calendar to be
read a first time in its order. Then begins the ad-
vancing of bills by unanimous consent, without wait-
ing to reach them in order. Here is where the organ-
ization has absolute control. Unanimous consent is
subject to the speaker's acuteness of hearing. His
hearing is sharpened or dulled according to the good
standing of the objector or of the member pushing
the bill. If one, not friendly to the House ^ organiza-
tion, ’ wants to have his bill considered over an objec-
tion, he must move to suspend the rules. The speaker
may refuse to recognize him, or may put his motion
and declare it carried or not carried as suits his and
the 'organization's’ desires. So the pet bills are
jumped over others ahead of them on the calendar,
while the ones not having the backing of the House
'organization’ are retired farther and farther down
until their ultimate passage becomes hopSess. If the
bill of the independent member reaches second read-

261

ameeica:^' legislatures

iBg it may be killed by striking out the enacting
danse or by tacking on an obnoxious amendment that
makes it repulsive to its former friends. A refer-
endum requiring not a majority of those voting on
the bill, but a majority of all the votes cast at the
election to adopt it, is a new and favorite method of
shelving a bill by amendment. To carry out the will
of the organization, the speaker declares amendments
carried or the contrary on viva voce vote. Demands
for roll-calls are ignored by him in violation of the
members ’ constitutional rights. This is called gaveling
a bill through. Formerly the gavel was used to carry
through political measures of the majority party and
to prevent obstructive and dilatory tactics of the
minority party. By a gradual growth it has come to
be used to help or defeat legislation in which the
organization has an interest, although the majority
may have a contrary view. What the speaker de-
clares, the clerk must record, and what the clerk
records no court will set aside. ’ ’

When a measure called for by public opinion has
finally been permitted to reach the floor of the House,
there still remains the supreme test of amendment
by which its purpose may be utterly changed though
its name be retained. The history of the Mueller bill
in the Illinois legislature offers a classic example.
The Senate in response to pressure from the reform
element had passed the bill and had safely entrusted
it to the organization committee in the House in the
assured confidence that it would be made harmless. A
member of Congress, at the time the boss of the organ-
ization, tried to persuade the reformers to accept the
262

THE PERVERSION OF LEGISLATIVE ACTION

Lindly amendment on the ground that nothing better
could be secured. The backers of the bill refused and,
considering the extent to which public attention had
been aroused, the bill had perforce to be reported in
the House. No discussion was there allowed; the
Lindly amendment was offered and the speaker pro-
ceeded to gavel it through. Then for once the oppo-
sition revolted. With loud shouts of roll-call, the
members rose from their seats and rushed toward
the speaker, who was obliged to flee for safety. The
House immediately calmed down, elected a speaker
pro tempore^ and passed the Mueller bill in its orig-
inal form.

A consideration of the legislative measures actually
demanded by the special interests will make it plain
that they are not based upon the idea of equal jus-
tice to all interests and classes of the community, but
that they constitute a plain attempt to get unusual
advantages and privileges for certain groups. Rail-
ways seek exemption from taxes, freedom from re-
strictions upon their traffic management such as the
requirement of safety appliances, and absolute liberty
to control their rate schedules. Electric railways
and gas companies demand long term franchises and
exclusive monopoly rights and the gratuitous conces-
sion to them of valuable public property. The success-
ful work of the trolley interests in Rhode Island is
very instmetive. In 1891, an act was passed by the
legislature empowering any town council to grant
exclusive street railway franchises for twenty years.
However, the promoters soon found that they had
made a mistake in not asking for a perpetual charter

263

AMERICAN LEGISLATURES

•wMcli would have been far more acceptable to in-
vestors. As even in Rhode Island pills have to be
sugar-coated and the outright demand of the article
they wanted might have been too startling, they se-
cured the passage of an act imposing an annual tax
of one per cent, on the gross earnings of the street
railway corporations accepting it. This combined
statute and contract was held to impty a recognition
on the part of the state that the charters held by the
corporations were unlimited by time.^ A sweeping mo-
nopoly was secured by the Consolidated Street Railway
Company in Connecticut in 1905. This corporation
is a holding company by which the New Haven Rail-
road controls its trolley system. The legislature be-
ing favorably disposed, the company got a charter of
almost unlimited privilege, to which was added a
clause vesting the corporation with all the charter
rights of any or all of the constituent companies, so
that whatever species of franchise or privilege has
ever been secured by any company of this nature in
Connecticut is now enjoyed completely and forever
by the Consolidated Railway Company. Not satisfied
with these achievements the company riveted its
monopoly by having the general railway law in the
state amended so as to prohibit new competing lines
from crossing the state without express legislative
sanction. A very interesting instance of the difference
it makes whose sheep has been bitten is afforded by a
bill introduced in Pennsylvania in 1905, forbidding
any constable from serving papers for any organiza-
tion unless the consent of the police had first been
1 Public Laws of E. L, 1898, ch. 580.

' 264

THE PERVERSION OF LEGISLATIVE ACTION

secured. This bill was directed against the Law and
Order Society of Philadelphia, which for two decades
had fought lawlessness and vice in the metropolis and
secured for it what immunity from violence and crime
it has enjoyed. The existence of such an association,
which actually attempts to enforce the law, was of
course a thorn in the flesh of the '^gang. ’^ The bill,
though opposed by some members, got along finely
until the Pennsylvania Railroad discovered that their
own investigation and prosecution of crimes against
their property would be impeded by it. Then sud-
denly the bill sank below the surface never to appear
again*

The campaign made for a long-term franchise for
the Chicago street railway companies was full of
striking turns and deviations. For this purpose the
state machine, which the railways had built up, but
which just then they did not need especially, was
utilized. The measure passed both houses without
difficulty, but happily the governor was a man who
guarded the public welfare. So the ^ interests’’ had
to go to some trouble in order to secure more willing
instruments. When the session of 1897 opened, their
hopes stood high. The Humphrey bill granting a
fifty-year charter was introduced ; but meanwhile the
reform sentiment had grown so strong that, while the
gas combination bill was passed and signed, the nerve
of the managers failed them when it came to traction
legislation, and they substituted the Allen bill which
conferred upon the Common Council of Chicago the
power to grant a long franchise. The bill was stoutly
opposed by the reform element and had to be gaveled

265

AMERICAN LEGISLATURES

through the House. But the opposition was now thor-
oughly aroused, and by dint of the greatest vigilance
they prevented any extreme action by the Council.
They demanded legislation giving the voters of the
city the power over traction matters ; and although a
bill for this purpose was in 1901 strangled in com-
mittee, they succeeded two years later in having the
Mueller bill passed which has already been referred to.

The desire of the politician, lobbyist, and boss to
give powers to officers or boards which they feel able
to control, is at the bottom of that unsettling and dis-
membering of institutions which is effected by the
so-called ‘‘ripper” legislation. The term “ripper”^
bill designates a measure which, in disregard of con-
jstitutional practice and rational principles of admin-
Sistration, tears to pieces constitutional and legal ar-
|rangements and distributes administrative powers
lamong willing tools. “Ripper” legislation is the
fruit of “ripper” practice in legislative procedure.
The total disregard of constitutional and parlia-
mentary x’ules naturally leads to legislation in which
all principles of a sane and settled polity are ignored.
As the party machinery grew more and more invinci-
ble in Pennsylvania, the constitutional restrictions of
1873 were gradually set at naught. Only upon rare
occasion was the political conscience successfully ap-
pealed to, as when in 1889 Governor Beaver asked
for the enforcement of Article 17 of the Constitution.
The Pennsylvania machine has been an adept in “rip-
per” legislation; among striking examples of such
measures are the following: An act depriving district
attorneys of the right to challenge jurors in certain

266

THE PERVERSION OF LEGISLATIVE ACTION

cases/ an act taking the power to grant liquor licenses
from the judiciary and giving it to a state excise
board, an act granting away water power belonging
to the state, and a law which gave final power in
matters of assessment of property in Philadelphia to
the Board of Tax Revision. In 1905, the machine
politicians propounded a new constitutional doctrine
to the effect that inasmuch as a majority of all regis-
tered voters had not voted for a certain constitutional
amendment but only a majority of those actually voting
upon it, the legislature was not bound to enforce it.
As this amendment required the personal registration
of voters, its enforcement would have touched a most
sensitive point of practical politics in Pennsylvania.

Interesting instances of '^ripper^^ legislation can of
course be gathered from many states. It is a frequent
practice of the machine, 'when it fears the election of
a hostile governor, to have the appointive power, or
a part of it, transferred to the legislature. The
Goebel law, which has caused Kentucky such endless
trouble, is also of this general nature, although its
passage was due to bitter party struggles, rather than
to the influence usual in such cases. It enacts that
the governor shall appoint the local election officials,
and that the legislature shall canvass the election
returns without any appeal to the courts. A most

^ This act was introduced in order to influence the selection
of Jurors in political trials. A few years previously, when the
district attorney of Philadelphia had been controlled by the
machine, the office had been given additional powers, but now
that the district attorney was independent, these powers were
removed.

y

267

AMERICAN LECISLATURES

ambitious scheme of ^‘ripper” legislation, fortunately
unsuccessful in the end by a narrow margin, was con-
ceived in the Illinois Senate in 1903.

The favorite field of ripper’’ legislation is, how-
ever, municipal government. By shifting adminis-
trative functions from state boards to municipal
bodies and vice versa, the loss of power by the organ-
ization in any locality can be neutralized and periods
of strong local opposition successfully tided over. In
this practice the politician always finds some interest
to appeal to. If he desires to curtail the powers of a
municipality, he will enlist the country members
against city privilege; and if the dominant party in
the locality in question happens to be opposed to the
majority in the state, it is easy to make a party ques-
tion of the authority of municipal officers. There is
always a certain latent opposition between the rural
and the urban representatives, which is played on
with great success by the boss and his associates. At
times the virtuous abhorrence of the country member
for the vices of the large town is utilized to effect
such legislation as the Raines hotel law, which allows
the local machine to levy a heavy tribute on tolerated
vice. The shifting of power at will from one gov-
ernmental organ to another is especially useful in
‘HroUey” and gas legislation. For when public in-
dignation has been aroused against some bold raid in
a municipal council, the legislature itself can more
safely furnish the legislation demanded by the spe-
cial interests; or again at times when public energy
has spent itself in watching that body, an act giving
ample powers to some municipal organ may effect the
268

THE PERVERSION OF LEGISLATIVE ACTION

desired purpose. The ^‘ripper” legislation in Penn-
sylvania included an attempt on municipal independ-
ence, in the act,^ by which the rightfully elected
municipal officials of Pittsburg who were hostile to
the machine were coolly legislated out of office, and
the governor's appointees substituted for them. The
city of Pittsburg therefore had successfully rebelled
against its local machine only to fall into the hands
of the more powerful political bosses at the state
capitol. A similar example of undue interference
with municipal law on the part of the legislature, was
the act of May 5, 1905, by which the power of the
mayor of Philadelphia to appoint heads of depart-
ments was curtailed.^ The bill was introduced so
late in the session that unanimous consent was nec-
essary to its passage, but the control of the machine
was so perfect that ‘^no objection was heard. Even
in Massachusetts there has been a strong tendency on
the part of the legislature to extend the power of

^Act of March 7, 1901. It abolishes the office of mayor in
cities of the second class, and vests executive power in the
^ ^ recorder. ^ ^ It was held constitutional by a divided court
in Commonwealth v. Moyer, 199 Pa. St., 534. The undisputed
facts are stated in the dissenting opinion as follows: *^It
applies specially to the three cities of Pittsburg, Allegheny,
and Scranton ; it changes their charters ; . . . puts them
under special provisions; . . . governs them by a high execu-
tive officer of the commonwealth, resident at Harrisburg; neces-
sarily ousting local officials elected by the people, whose terms
had not yet expired. ’ ’

"See Laws of Pennsylvania, 1905, pp. 390-397, for the gov-
ernor’s message vetoing similar bills but approving the above
act, after citing Jacob, Nero, Charlemagne, Lincoln, Pope, the
Anabaptists, etc.

269

AMERICAN LEGISLATURES

state officials at the expense of mnnicipalities.^ The
city of Boston is constantly objecting to legislative
interference, and in 1905, Mayor Collins in vigorous
terms vetoed a proposal for co-operation of the state
and city in a certain improvement. An exceedingly
bold use of ripper’’ legislation occurred in Michigan
in 1900. When Detroit had elected a Democratic
mayor, one of the city officials who had failed of reap-
pointment formed a triumvirate with two other local
politicians who, backed by the Governor, secured the
passing of a bill depriving the mayor of his ap-
pointive power and giving it to the Republican City
Council. Under this arrangement the triumvirate
controlled the city and sought popularity by running
a “wide open” town. When one of the trio was
convicted of bank-wrecking, he was released by the
governor on parole, and another member who had al-
ready served a term in the penitentiary was ap-
pointed on the Board of Prison Control, presumably
on account of his expert knowledge. We can con-
template with some satisfaction the general house-
cleaning which followed close upon this remarkable
era of municipal statesmanship. As this case shows,
the legislature, although the agent in effecting “rip-
per” legislation, is not always the prime mover. The
impulse very often comes from defeated factions in
the localities in question, who failing of election pro-

^E. g* the police boards of Boston and Fall River. The
act increasing the term of the mayor to two years was passed
to assist the Republicans in Boston, but it resulted to the eon*
trary in strengthening the hold of the Democratic party.

270

THE PEEVERSION OF LEGISLATIVE ACTION

mote such legislation as will restore power to them
through appointment.

The situation in Illinois is rendered difficult by the
inveterate misunderstanding between Chicago and the
rest of the state. The large representation which
Cook County has in the legislature (over one-third
of the members) causes no little jealousy on the part
of the country districts; while Chicago on her part
is rather inclined to look upon the country members
as of small account. This state of affairs in ordinary
times is very welcome to the politician as it enables
him to play off' the two sections of the state against
each other. Nevertheless in times of real need the
country districts have nobly come to the rescue of
Chicago. It was the assistance of the country mem-
bers and their constituencies, aroused by the reports
of legislative action in the Chicago papers, that
helped the citizens of Chicago to defeat the fifty
years ^ franchise bill of 1897. In 1899, Chicago ap-
pealed directly to the people of the state for the de-
feat of the Allen substitute bill, with the result that
only two of the sixteen retiring senators who had voted
for the Allen bill were reelected, and fourteen of the
eighty-two representatives. In Missouri the interfer-
ence of the state politicians with municipal govern-
ment was formerly so outrageous that it became one
of the chief articles in Governor Folk’s program to
give municipal home rule to St. Louis, Kansas City,
and St. Joseph. The only legislation effected in 1905,
however, was to take the appointment of the St.
Louis police out of the hands of the governor and
give it to the mayor of that city.

271

AMERICAN LEGISLATURES

It is natural that in the state of New York there
should have been a close connection between legisla-
tive polities and the administration of the metropolis.
Constant interference or reform’' of the city gov-
ernment began when the Republicans came into power
in 1857. Between that date and 1890 eleven different
charters were enacted for New York and the interests
of the city became the chief capital upon which state
politicians traded. At times the most vicious legis-
lation against the interests of the city was promoted
by the New York delegation itself, who, faithful to
their profession as politicians, betrayed the interests
which they were supposed to represent. Such was
the case in 1892, when they supported the election in-
spector’s bill, the Foley excise bill, and the Central
Park speeding bill, which favored the sporting in-
terests at the expense of the rest of the community.

Though it often happens that the politicians more
directly representing industrial interests and those
who favor a lax police administration belong to op-
posing political parties, there is by no means always a
real opposition between them with respect to this mat-
ter. Indeed it frequently happens that those in con-
trol of the state machinery will help the grafters on
local vice through the passage of a certain kind of
^^good” laws. Virtuous on their face, these enactments
render the traffic in police immunity far more profitable
because they are too exacting to be actually enforced
against all ; and therefore immunity, which under the
circumstances will be granted to some, is sold at a
very high figure. Instances of this kind of legislation,
supported in many cases by the agencies that are really
272

THE PERVERSION OP LEGISLATIVE ACTION

wishing and hoping for good government, are un-
happily very common. Through the enactment of
such laws the party manager has paid his debt to the
respectable element in the community. He can then
proceed to hold the law as a club over the middlemen
of vice and extort from them substantial contribu-
tions. The bosses of the machine are therefore not
inherently indisposed to favor ^^good government”
legislation. Among the men whose names are promi-
nently connected with moral reform legislation we
need not be surprised to find those of politicians, the
nature of whose actual alliances are too weU known.
When, therefore, the cry of good government is raised
by this kind of politician, the real friends of decency
do well to be on their guard, for in most eases what
the bosses desire will be the creation of what Mr.
Jerome calls an ‘‘administrative lie,” i. e., the plac-
ing on the statute books of stringent laws against
liquor and vice, the very strictness of which is, how-
ever, made the means of extortion by the local politi-
cal managers. It frequently happens that the influ-
ences representing lax morality gain important privi-
leges from the legislature through acts the full bear-
ing of which is not realized by the members in gen-
eral. This has often been accomplished in connection
with so-called “Breeders’ ” legislation. Thus, for in-
stance, the breeders’ law of 1897 in Missouri, which
prohibited betting on horse-races “except on race-
tracks,” and which was ostensibly passed for the en-
couragement of the breeding and training of horses,
was signed by the governor without a recognition of
its sinister purpose. In 1905, at the very end of the

IS 273

AMERICAN LEGISLATURES

session, tlie New Hampsliire legislature passed a law
(Ct. 232) to incorporate the New England Breeders
Club, according to which the club is given the right
to hold fairs and horse-races, and is permitted to fur-
nish its own police; betting on horse-races is for-
bidden, the penalty, however, is only the forfeiture of
the amount of the bet in a civil action. The abuses
which may arise under such lax legislation are ap-
parent, and the people of New Hampshire were much
aroused about this charter, although the administra-
tion of the Club has given assurance that no gambling
is to be allowed.

CHAPTEE IX

PUBLIC FORCES INFLUENCING LEGISLATIVE ACTION

It has been shown in the last chapter that legislative
action is frequently determined by influences of a pri-
vate nature which are exercised more or less in secret, i
and through methods that are not in accord with the;
spirit of our institutions. While such influences are
by no means everywhere, nor always, in control, they
have at certain times made themselves dominant in
nearly every one of the commonwealths, and their
recrudescence is possible at any time. In order that
such sinister conditions should be avoided it is neces-
sary that the public sources of the legislative will
should be developed and their constant and noimial
action facilitated. The legislature itself originates
comparatively few law^s. Mcst of them are suggested
by outside influences, and are taken over and made
their own by legislators. Legislatures indeed rather
shun originality; they are more inclined to copy
enactments from other states, and really new depar-
tures in legislative experiments, original solutions of
legislative problems, are mostly suggested by active
men or organizations outside the legislative bodies.

Considering the prominence of party politics in our

275

AMERICA]^ LEG-ISLATURES

national life, it would seem natural that party action
should have a determining influence in legislative
matters. Quite the contrary, however, is true as far
as actual legislation is concerned. Party lines are in-
deed drawn and members are known as Republicans,
Democrats, etc.; but ordinarily the party organiza-
tion in a state is merely a subsidiary part of the
national machinery, and represents no distinct policy
of state government and legislation. The state plat-
forms of the various parties frequently deal with na-
tional questions, with patriotic declarations, and vague
statements of principle. Even when they contain
planks referring to some matter of merely local inf-
portance, such resolves are not always followed by
specific legislation. While the legislature is being
brganized, its offices distributed, and the United
States senator elected, party activity is indeed very
animated. On such questions as the redistricting of
the electorate, or the creation of new local units of
;government, party discipline is also usually kept up,
hut questions of general legislation are more rarely
,'made a matter of party difference.^ The frequency

I

^ Thus in Illinois in 1903 there were only two strictly party
votes, one on the election of a United States senator, the other
on the formation of a Supreme Court district. Under Pro-
fessor A, L. LowelUs criterion of considering a vote partisan
when nine tenths of the party vote in a certain way, there
were in the Iowa Senate of 1898, only three party votes put
of 372; in the House, only nine out of 394. In the Minnesota
Senate of 1903, there was no party vote; in the House, one
out of 741, that one being on the election of the speaker. In
the Wisconsin Senate in 1893, there were three true party
votes out of 116 recorded yea and nay votes; in the House, ten

■ 276 .

INFLUENCING LEGISLATIVE ACTION

of unanimous votes is surprising. It is very usual
for more than one half of the votes in the session to
be unanimous. In Minnesota, this class of votes in
1903 comprised more than eighty per cent, of the
total. In states where the organization is strong, the
mover of a bill will usually be satisfied when he has
secured the required number of votes for his measure,
so that a large number of bills will be passed by ex-
actly the required constitutional majority, and often
without opposition. The opposition can ordinarily
muster a party vote with greater ease than the party
in power, both on account of its smaller size, and on
account of the fact that its mission is rather to criti-
cize and delay than to construct. At times when
state matters have been given an unusual prominence
in the party struggle, party votes will be more fre-
quent, as was the case during the Populist regime in
Kansas. On account of the even balance between
parties in New York, as well as the importance of the
state as a political unit, there has been far more strict
party voting in its legislature than is the case in other
^states. The general unimportance of party in ordi-
nary legislative matters is also shown by the infre-
quency of party caucuses held to determine upon
specific legislative measures. Such caucuses are as a
rule held only when some question of personal politics
is involved. The ordinary arrangement of legislative
business in the larger states rests as we have already

out of 145. The general average is somewhat higher. See
A. L, Lowell/ ' The Influence of Party upon Legislation in Eng-
land and America.’’ Bep. of the Am. Hist. Assoc., 1901.
Vol.U321.

277

AMERICAF LEGISLATURES

seen rather on bi-partisan arrangements, with an occa-
sional use of party discipline by the managers for
their own purposes.

The ease with which governors belonging to a dif-
ferent party from the majority of the legislature
manage to get along also indicates that party
is not an essential factor in state legislative
and administrative work. Governor Folk, in
carrying out his reform program, had to place
his chief reliance upon the party opposed to
him; and he actually received more assistance from
the Republican House than from the Democratic
Senate, which latter rejected his principal bill for the
stamping out of bribery. Governor Douglas of
Massachusetts, surrounded by Republican state ofS-
eials and legislators, carried on a very successful ad-
ministration. He maintained perfectly harmonious
relations with the legislature and used the veto only
four times, in three of which instances he was upheld
by the General Court. Governor Toole of Montana,
under similar circumstances, secured the passage of
most of the measures in which he was interested, al-
though he was forced to veto a number of legislative
bills. Governor Johnson of Minnesota also lived in
amity with the legislature though representing the
opposite party.

Public opinion, which is theoretically the guide and
source of legislative action, has in practice given very
little attention to state legislatures, and has ordinarily
allowed narrower interests to prevail without let or
hindrance. But occasionally when it has been aroused
on account of some crying abuse, or has become in-
278

INFLUENCING LEGISLATIVE ACTION

terested in some important measure, it constitutes for
a time the predominant factor in legislation. A strik-
ing instance of such public interest in matters of
state policy is found in the movement in Pennsylvania
in 1872, which led to the calling of a Constitutional
Convention, on account of the public indignation at
the prevailing bribery; or in the formation of the
Law and Order Society which secured for Philadel-
phia its charter, and induced the legislature to pass
a high license law in 1887 as well as to confer upon
the courts the power to grant licenses. In New York,
public opinion has been active in behalf of such meas-
ures as the franchise tax law and the tenement law,
which latter was passed against the onslaughts of a
most powerful lobby representing builders, real estate
owners, and material men. The manner in which
public opinion in Illinois defeated the machinations
of the street railway interests of Chicago has already
been referred to. Public opinion in such cases be-
comes articulate through newspaper propaganda, and
through the organization of various reform associa-
tions. While the special interests, of course, always
provide themselves with newspaper organs, such afSl-
iations are soon discovered by the public and the edito-
rial column of such papers loses its influence. Some
of the most gratifying defeats of machine manipula-
tions in legislatures have been brought about by the
hue and cry raised by the independent metropolitan
press. The country papers on the other hand are
generally less efficient, being more dependent upon
large advertising contracts from patent medicine
frauds and other exploiters of the public.

279

AMERICAN LEGISLATURES

Reform organizations have appeared in a multitude
of forms and have worked with varying degrees of
success. An interesting example of an organization
which follows out the purpose of raising the general
quality of legislative representatives and enactments
is the Legislative Voters^ League of Chicago. In its
biilletins it gives a brief account of the actual work
performed and the measures favored by the repre-
sentatives who are candidates for re-election. Its
eTforts seem to have had a salutary influence upon the
legislature. Thus, for instance, the payroll stuffing
which it specially attacked has almost entirely disap-
peared. In 1903, the legislature had 393 employees
who were paid $110,000; in 1905, it managed to get
along with 211 and a payroll of $65,000. The dan-
gers which beset reform activity are of many kinds.
Reformers are ordinarily somewhat too independent
and individualistic. They find it difficult to work
together, and their factional, contradictory appeals
confuse and irritate the legislators. Moreover, the
ordinary legislator will listen to the business man or
!the lobbyist who represents some concrete interest
affected by legislation; he will also perforce listen to
the representatives of organized reform, who may
command a powerful array of votes; but the indi-
vidual reformer is an unwelcome guest in the legisla-
tive halls. The interest which he represents is too
vague and indefinite for the legislative mind. He is
looked upon as a bothersome intruder, who takes it
upon himself to teach the legislature its duty and to
show it the way to proper legislation. The old Ameri-
can adage about minding one’s own business is used
280

INFLUENCING- LEGISLATIVE ACTION

against such men. In fact it is used unjustly and
excessively, and it accounts for much of the abuse in
our legislative life. The man who has some business
to represent, no matter how disreputable, whether he
has money invested in a patent medicine or in a race-
track, has, in the minds of many legislators, a better
standing before them than he who comes to argue for
the rights and interests of the public. Eeformers
are, however, often too impatient, too uncompromis-
ing, to be successful in urging their point of view.
The reform legislation in Illinois in 1905 was at
times seriously endangered by the zeal and impatience
of certain enthusiasts.^ But the reform movement
was so strong that even in the face of some indiscre-
tions, the principal measures advocated were passed,
though in a somewhat modified form.

The manner in which popular sympathy may at
times gather around radical and unpractical measures
is exemplified by the Kansas state refinery bill of
1905. The legislature was at first opposed to the
governor’s recommendation on this head; but consid-
ering the public indignation against the Standard Oil
Company, the independent oil producers concluded
that it would be best to utilize this enthusiasm, and
under the wing of the refinery bill to carry through
other important legislation. The bills thus appended
to the main measure provided for the fixing of a
maximum freight rate, declared pipe lines to be com-

^ When ono of them reiterated with loud voice and vigorous
gesture before Governor Deueen, ''We won^t accept bill 121,^^
the Governor remarked quietly, "I hope you -won^t veto it be-
fore it is passed.

281

AMERICAN LEGISLATURES

mon earriervS, and forbade discrimination in prices
for commodities. Though the speaker of the House
was opposed to the original bill, which he considered
unconstitutional, it was passed and carried in its
train the other measures. This action shows clearly
the character which popular interference will at times
assume. An extreme measure, soon declared uncon-
stitutional by the Supreme Court, was passed be-
cause it monopolized the popular interest; the bills
following in its wake, for which the public cared
little, were measures of real and permanent import-
ance.

/ Legislative organizations will be careful not to defy
j public opinion, however ready they may be to defeat
’ it. But when the organization forces begin to take
an interest in a popular bill, its friends have need of
the greatest caution and of unfailing watchfulness.
Otherwise, while indeed a measure outwardly corre-
sponding to the public demand will be passed, there
will be attached to it brief and apparently unimport-
ant amendments, which, however, in the end may re-
sult in the complete defeat of the purpose of the bill.
The Elkins act for the improvement and better en-
forcement of the Sherman anti-trust law contains a
short provision which declares that infringements
shall be punished by fine and not by imprisonment.
The attorney-general very soon discovered that the
law could not be enforced through the imposition of
small fines upon persons drawing immense pecuniary
benefits from the system of rebates, and he instructed
his assistants to proceed under the original law. Dur-
ing the entire struggle over the tenement house bill
282

INFLUENCINe LEGISLATIVE ACTION

in New York and for years after it had become law,
constant attempts were made to annihilate its effi-
ciency by amendments. A favorite method used for
the purpose of defeating an unwelcome law is to ati
tach to it an amendment submitting the enactment ?
to the people at the next general election, and pro-
viding that the law shall go into effect if a majority ;
of all the electors voting at that time shall accept it.

The articulateness of public opinion becomes clear-
est and most convincing in commonwealths where the
governorship is held by a man who is in close touch
with the desires and needs of the people in general,
and whom the various organizations favoring reform
may trust to give authoritative x'epresentation to their
views and reasonable demands. The importance of j
the reform governors is based not so much upon their ’
position as heads of the administration, but upon their ;
character as the authoritative interpreters of the pub- '
lie will. Their position gives them a greater sense of
responsibility and a more complete view of the situa-
tion than is found in the ordinary lay reformer.
While keenly alive to the interests and wishes of the
people and desirous of doing away with abuses, they
are apt to choose their ground with care and do not
attempt the unattainable.

But the governor, as the head of the administrative
departments and of the state government in general,
also has a growing influence over legislative action.
As governmental relations become more complicated
and such intricate economic pursuits as banking,
transportation, and insurance have to be dealt with
by the legislatures, they more and more feel the need
283

AMERICAN LECISLATURES

of expert guidance, and are willing to listen to tlie
governor, tlie state officials, and the various boards
and commissions, in matters of legislative policy and
detail. In some eases this tendency has been so
strong as to amount to a virtual abdication of legis-
lative authority. At the end of the last session of
the California legislature, the governor was left with
a mass of hastily enacted measures on his hands.
The legislature had opened the flood gates wide, with
the avowed understanding that the governor would
carefully sift and examine the product before giving
his assent. It went so far as to pass mutually con-
tradictory measures leaving it to the governor to
choose between the alternatives or reject both. The
result was that after the legislature had adjourned,
the real work of legislation began. During the ten
days allowed by the constitution the governor and his
entire force of assistants worked day and night.
Hearings, necessarily brief, were accorded to per-
sons interested in proposed measures. The whole
volume of legislation was carefully gone over, before
the governor decided which of the enacted measures
were to become law. Mr. Roosevelt, while governor
of New York, took a very decided position of leader-
ship. One of the measures which owe their existence
chiefly to him and which he carried through in the
face of an almost overwhelming opposition of lobby
and representatives, is the franchise tax law of 1899,
So solicitous was he for the success of this measure
that he called a special session to correct certain flaws
in its wording that had been overlooked. After a
long and severe legal struggle, the law was finally
284

INFLUENCING LEGISLATIVE ACTION

declared constitutional by the United States Supreme
Court in 1905. Mr. Odell, while governor, especially
during his first administration, exercised a powerful
influence over the legislature- His message of 1901
was practically taken as a legislative program and
most of his recommendations were embodied in legis-
lative enactments. But during the second term he
was not so successful, failing in some of the measures
which he valued most, such as the recording tax on
mortgages, and the canal legislation.^ Governor Crane
of Massachusetts was a true leader in legislative mat-
ters. His most signal victory was the veto of the
Boston subway bill in 1901 j after his veto the oppo-
sition to the bill increased by ninety votes. Similar
instances of leadership could be multiplied, and they
are indeed a symptom of a healthy development in
our political system. A position with such oppor-
tunities as the governorship could not remain an
ornamental sinecure, but the possibilities for public
service which it holds within it had to be utilized.
It is often attempted to disparage the influence of
active governors by stigmatizing them as bosses and
insinuating that they are no better than the men
who, through secret traffic in corruption, gain
power without public confidence. But where a
governor effectively organizes his own followers,
on the basis of the public principles for which he
stands, the headship of such an organization, the
public leadership wffiich it implies, must not be con-

^ Mr. Odell acceptance of tlie chairmanship of the State
General Committee was regarded as incompatible with the duties
of a governor, and his legitimate infliience declined.

285

AMERICAN LEGISLATURES

founded with the subterranean work of a corrupt
political machine.

Among the most striking developments of the last
decade or two, is the growth of expert commissions
and boards in the state governments. In many com-
monwealths these organs of the administration are
the direct descendants of legislative committees.
Where there was originally a visiting committee for
the state institutions, there will now generally be a
Board of Control, though a visiting committee with
limited functions may also still exist. The examining
of banks was also originally performed, in a most
superficial manner to be sure, by legislative com-
mittees. Before establishing a commission, the legis-
lature has usually become acquainted with the need
of administrative expansion along a particular line
through the work of one or several of its committees.
But while not all commissions or boards are formed
in this manner, they all have an important connection
with and bearing upon legislation. They are ordi-
narily themselves intrusted with a large power of leg-
islation by ordinance. Thus the insurance commis-
sioners are often empowered to fix the wording of
the standard policy, and to make other important
regulations. The legislature, moreover, relies upon
these organs of government for information and ad-
vice concerning the part of the administration under
their control. Laws affecting a commission are fre-
quently drafted by itself and introduced in its behalf
by some member. The times are over when a mem-
ber lays himself open to contempt by admitting that
a certain measure favored by him comes from the
286

INFLUENCING- LEGISLATIVE ACTION

Executive.^ In matters affecting tlie difficult rela-
tions of manufacturing industries, railways, banks
and other credit institutions, taxation, and public ser-
vice, expert authority is becoming more and more
prominent in our legislative affairs, and is listened
to with respect by our legislative bodies.

Among the expert agencies which influence legis-
lation under the American system, the legal profes-
sion has long occupied a position of great promi-
nence. The prejudice against lawyers which in many
of the colonies led to the adoption of laws excluding
them from membership in the legislature has given
way,^ and lawyers have long since become the most
influential leaders in our national and local legisla-
tive assemblies. The peculiar American view of the
character of a written constitution as an organic act
which is interpreted, applied, and enforced by the
courts, has emphasized the legal aspect of institutions.
During the larger part of our national history,
hitherto, lawyers were in ail respects the natural
leaders of the people. In the earlier days, they alone
were trained to speak on public affairs, they alone
had the necessary all around acquaintance with laws
and political methods. But at present the impression
cannot be avoided that the influence of the lawyer in

^ In 1905, the dairy and food commissioner of Wisconsin
introduced eighteen separate measures for the regulation of
rarious food industries. He avoided combining them into one
measure, in order to break up the inevitable opposition of
special interests.

^Although, in 1847, a similar clause was strongly advocated
in the Rhode Island Constitutional Convention.

287

AMERICAN LEGISLATURES

politics is on the wane. A statistical study of the
personnel of the legislatures reveals a decline in the
percentage of lawyers. In the United States Senate,
the percentage decreased from eighty-one per cent, in
the Fiftieth Congress, to seventy per cent, in the
Fifty-eighth; and in the House, from sixty-nine per
cent, to fifty-six per cent, in the same period. In the
states an even greater decline of percentages is to he
observed. The actual loss of influence of the legal
profession, which is even larger than these percent-
ages indicate, is due, however, not so much to this
reduction in numbers, as to the change of temper
which has come over our public affairs. Although the
United States Senate still listens to extended consti-
i tutional arguments, the discussions of other legisla-
[ tive bodies are devoted far less to legal considerations
than they were in former years. In fact, some of the
legislatures have become impatient of legal argu-
ments, and frequently pass laws regardless of consti-
tutional objections, throwing the burden of determin-
ing the cogency of the latter entirely upon the su-
preme courts. The differentiation of the professional
politician and the power which he has acquired
through organization and machinery, has also reduced
I the influence of lawyers. While lawyers as a profes-
sion are somewhat narrow and over-conservative in
legislative action, the change from legal to commercial
methods of leadership has brought about many un-
fortunate results. However, lawyers will always be
sure of a substantial influence as long as our system
j lasts. In the state legislatures they compose the im-
portant judiciary committee, to which all changes in
288

INFLUBNCmCJ LEGISLATIVE ACTION

existing laws are submitted. The training acquired by
lawyers tbrough tbe practice at the bar is of great
advantage in a legislative career; and tbe leaders of
tbe bouses, tbe speaker and tbe chairmen of most
prominent committees, are usually lawyers. Though
not to the same degree as formerly, lawyers still con-
stitute the most representative profession in the com-
munity. In their practice they come in contact with
ail classes and conditions in our social and economic
life, and they have unequaled opportunities of ob-
serving the workings of law. So, while a government
entirely carried on by lawyers would be extremely
undesirable, a republic resting upon a written con-
stitution and free from a dominating caste, can
hardly be conceived of without considerable promi-
nence being accorded in public affairs to the profes-
sion of law.

While the authority of administrative and of legal
experience is openly present and active in our legis-
latures, the authority of the experience of large indus-
trial and commercial enterprises is not so directly
exercised. While the legislatures of our states containi
farmers, lawyers, physicians, merchants, and real es-
tate agents, one will look in vain for officers or man-
agers of large industries or corporations. On the one
hand, such men are not considered popular candi-
dates ; on the other, their business interests are so en- ,
grossing that they lack the time for public service."
So they are practically excluded by prevailing con-
ditions from directly assisting the state by their
valuable experience. Their only contact with the leg-
islatures is through the lobby and through committee
289

19

AMERICAN LEGISLATURES

hearings. It may be suggested in passing that all
this would be changed, could we develop a system of
open representation of interests, in which the arrange-
ment of our institutions would correspond more
directly to the organization of economic life than is
the case with our present individualistic system.
Each great interest would then be anxious to be rep-
resented by its most experienced and able men; and
an Assembly composed of the select representatives
of the industries, the financial corporations, trans-
portation, commerce, labor, education, etc., would oc-
cupy a different plane from so many of the present
legislatures in which practical politicians who repre-
sent only their lessors play a dominant part. In cer-
tain respects our legislatures are indeed representa-
tive enough; they are composed of a fair average of
men in the various walks of life. But they are indica-
tive rather of that average— a somewhat indifferent
mean— than of great ability and experience in social
and economic life. Unfortunately the various inter-
I ests whose power is actually controlling are generally
I not represented at all in an open and acknowledged
I manner. They therefore use indirect means of exert-
{ ing their influence to the endless harm of our political
' system.^

In states where committee hearings have not Been
' reduced to a mere formality for recording the will of
: the organization, legislators are afforded the oppor-

^Tlae system of representation of interests, whdie in use in
connection with advisory councils, has not yet been adapted
anywhere to a general electorate and a legislature sharing
sovereign power.

290

INFLUEMCim LEGISLATWE ACTION

tunity of obtaining' valuable information from the
various representatives of interests who appear before
committees. Such representation, which is also indis-
criminately called lobbying, should be carefully dis-
tinguished from the use of secret and personal influ-
ence which rightly goes by that name. The fullest
encouragement should be given all interests affected
by proposed legislation to make themselves heard be-
fore the legislature. Open argument before a com-
mittee or before the legislature itself, or the written
presentation of facts and of conditions is of course in
every way perfectly legal and regular. Compensation
for such services can be legally recovered, and con-
tracts for such payment have a standing before the
courts. The law is clearly stated by the Supreme
Court : ^ All persons whose interests may in any way
be affected by any public or private act of the legis-
lature have an undoubted right to urge their claims
and arguments either in person or by counsel pro-
fessing to act for them before legislative committees
as well as before courts of justice. But where per-
sons act as counsel or agents or in any representative
capacity, it is due to those before whom they plead
or solicit that they should honestly appear in their
true characters, so that their arguments and repre-
sentations, open and candidly made, may receive their
just weight and consideration. A hired advocate or
agent assuming to act in a different character is prac-
ticing fraud and deception on the legislature.’’ In
Trist V. Child, 88 U. S., 441, Justice Swayne said:
‘ ‘ Services which are intended to reach only the reason
^Marshall v, B, & 0. Ey. Co., 16 Howard, 314.

291

AMERICAN LEGISLATURES

of those sought to be influenced rest on the same prin-
ciples of ethics as professional services and are no
more exceptionable. They include drafting the peti-
tion -which sets forth the claim, attending to the tak-
ing of testimony, collecting facts, preparing argu-
ments and submitting them orally or in writing to a
committee, and other services of a like character;
but such services are separated by a broad line of
demarcation from personal solicitation, and though
compensation can be recovered for them when they
stand alone, yet when they are blended and confused
with those which are forbidden, the whole is a unit
and indivisible, and that which is bad destroys the
good.’’ Any services implying personal solicitation
or any underhanded influence, therefore, cannot be
made the basis of an action for fees or remuneration,
and a lobbyist cannot recover in a court of law com-
pensation for his services. In the great financial
centers like New York, a practice has grown up which,
while formally legal, carries with it a great tempta-
tion to employ corrupt means. Firms of lawyers will
undertake to draft a bill for a certain purpose, have
it introduced, watch its progress, argue it before com-
mittees, prepare written statements, and finally after
it has been passed defend its constitutionality, which
they guarantee. The remuneration paid for this ser-
vice is at times exceedingly high, fees of $100,000
being of not unusual occurrence. As the fees are con-
tingent upon the passage and final validity of the
law, it is apparent that they constitute an induce-
ment to use methods which are not strictly profes-
sional. In fact, under the guise of legal representa-
202

INFLUENCING LEGISLATIVE ACTION

tion compensated by regular fees, some of the most
objectionable lobbying is carried on.

During recent years, many legislatures have en-
acted laws and adopted rules designed to curb the
evil of lobbying and to give a recognized status to
proper representation of interests.^ In some states
the radical means has been adopted of declaring the
attempt improperly to influence legislation a felony.^
Many other states punish the corrupt solicitation of
legislators by fine or imprisonment, or both. On ac-
count of the secret nature of the offense, convictions
are, however, extremely rare, and the threatened pun-
ishment is in itself not a sufficient means to prevent
the activities of the lobby. In some states it has been
enacted that in a trial for legislative briber}^, a wit-
ness shall not be excused from testifying on the
ground of self -incrimination.® This refers, however,
only to eases where bribery is directly charged, tin-
der the rules of many legislatures the privilege of
admission to the floor is restricted so as to exclude
lobbyists. But these rules are not strictly enforced,
except in Massachusetts, where the dignity and de-
corum of the ‘General Court has been much increased
by the rigid exclusion of unauthorized persons. In
the states of Massachusetts, Maryland, and Wisconsin

*For a digest of the legislation, see Schaffner, Lobbying,'^
^'Wisconsin Comparative Legisl. Bulletin No. 2.’^

®Utab, Tennessee, Oregon, Montana, Georgia, Arizona. The
constitution of California declares lobbying a felony, bnt there
has been no legislation to carry ont this provision.

® Arizona, Montana, Pennsylvania, Washington. Governor
Folk favored snch legislation in Missouri.

293

AMERICAN LEGISLATURES

the attempt has been made to regulate the status and
the activities of legislative counsel or agents. The main
provisions of the laws of these states on the subject
are as follows :

Persons employed to act as counsel or agent to pro-
mote or oppose any legislation affecting the pecuniary
interests of any individual, association, or corpora-
tion as distinct from those of the whole people of the
state are to be registered within one week after em-
ployment. The secretary of state (in Massachusetts,
the sergeant-at-arms) is to keep two dockets: the one
for legislative counsel before committees, to contain
the names of counsel or persons employed to appear
at public hearings before committees of the legislature
for the purpose of making arguments or examining
witnesses and also the names of any regular legal
counsel who act or advise in relation to legislation;
the other for legislative agents employed in connec-
tion with any legislation. The dockets are to be
public records, open to the inspection of any citizen,
and are to contain the names of employers and of
counsel and agents, with addresses, occupation, date
and length of employment, and the subjects of legis-
lation to which the employment relates. All agents
and counsel ai'e to be registered before acting. Em-
plo3rment for compensation contingent upon success is
not permitted. Legislative counsel not also entered
on the agents’ docket are limited to appearing before
committees and to giving legal advice. Counsel and
agents are to file written authorization to act. Within
thirty days after final adjournment of the legislature,
every person, corporation, or association employing
294

INFLUENCING LEGISLATIVE ACTION

legislative agents or counsel sLaU file a sworn state-
ment of expenses with the secretary of state. Munic-
ipalities and other public corporations, are exempt
from these provisions. In Wisconsin, a law of 1905
specifically makes it unlawful for any legislative
counsel or agent to attempt to influence any legislator
personally and directly otherwise than by appearing
before the regular committees, or by newspaper pub-
lications, or by public addresses, or by written or
printed statements, arguments, or briefs delivered to
each member of the legislature.

A most effective method of dealing with lobbying
would be found could the members of the legislature
be made independent of the courtesies of the lobby-
ists. These persons, often highly trained and well
informed, are able to render themselves exceedingly
useful, as well as agreeable, to legislative members.
Every new member desires to make the impression
of accomplishing something for his constituents. He
has certain measures which he wishes to bring for-
ward. Totally unacquainted with the customs and
procedure of the House, unfamiliar with the general
nature of legislative life, he is at a loss what steps to
take, and is practically forced to seek assistance some-
where. His fellow members are busy with their own
measures and affairs, his salary is not sufficient to
enable him to engage the expert advice of counsel.
When he is befriended by the gentlemen of the lobby,
who explain to him the procedure of the legislature
and provide him with the material he needs, he is
apt to accept their assistance and thus come under
obligations to them. It is at this point that a really
295

AMERICAjNf LEGISLATURES

far-reaching reform in our legislative life can he ef-
fected by the use of the right methods. The ex-
periment has been made in some states, notably in
Wisconsin. Some years ago, the legislature of that
state voted a small appropriation for a legislative
reference library, and a man who had carefully
studied history, economics, and politics was put in
charge. With a small expenditure of money he rap-
idly gathered a valuable collection of reports, bills,
and laws,— catalogued and indexed so to be at all
times readily available. When the legislature con-
vened he was ready to give every legislator impartial
service and reliable information. No matter what
subject a member might be interested in, or what bill
he might be desirous of introducing or combating,
he need not be at loss for information as to what
other states had done, how such legislative experi-
ments had succeeded, and how to frame his own pro-
posals. Bills were drafted for members at their re-
quest and they were given hints on important points
of practice, and even arguments were prepared for
them if they so desired. Unwearied service, universal
helpfulness, impartial and tactful dealing with any
public question brought up, enabled the expert to
give the members exactly what they needed, to fur-
nish them a place where they could go in the fullest
confidence that the best sort of information and
assistance which any effort could secure would be
supplied to them. The result has been most gratify-
ing. Already long before the session begins, inquiries
commence to pour in, asking for information con-
cerning legislative precedents, conditions in this and

296

INFLUENCING LEGISLATIVE ACTION

other states, the feasibility and constitutionality of
laws, etc. Throughout the session the expert and all
his assistants are working at red heat, keeping abreast
with the endless and exacting demands made upon
them. The members of the legislature, having an
unpolluted source of information at their command,
gain self-reliance and confidence, they are able to
meet the pleader for special interests with strong
arguments drawn from their independent armory.
Some of the experienced legislative counsel who ap-
peared before this legislature, declared they had
never come before a body of men so well informed and
so keen in their insight, and yet no more than good
average representatives of the people of the state.
Moreover, seeing the bearing of the questions with
which they were dealing, not confused by half-under-
stood arguments, the members have taken an in-
creased interest in the work before them.

The idea of a legislative laboratory and clearing-
house of information has taken root in other states as
well. Dr. McCarthy’s work has been the model
for many commonwealths which have instituted
similar departments. The State of New York has
long had an efficient legislative library by which
valuable studies in comparative legislation are issued.
The position and work of the legislative expert must
of course be kept absolutely free from partisan bias.
In the state of Wisconsin, the appropriation for this
department has been kept so low that it does not
afford an attraction for political manipulations. It
is necessary that this institution be more than a refer-
ence library. The real work is not done by rows of
297

AMERICAN LEGISLATURES

books and card-catalogues, no matter Low well ar-
ranged and useful in themselves, but by a man who
can deal with men and gain their confidence; who,
without a shred of red-tape or official pomposity
about him, is ready to make himself the servant of all,
even when their little plans may strike him as ridicu-
lous; but who must also have the mastery of the sub-
ject matter and of the sources of information that
will gain him the intellectual respect of the men for
whom he toils. It may be that in some states corrupt
methods are so firmly intrenched that no improve-
ment can be gained from such a system of liberal
information and assistance, but in most eases this
would seem a better way to defeat the lobbyist than
the mere reliance upon punitive statutes. Wher-
ever the right kind of service can be secured the tone
of the legislature and the quality of the product will
be improved without fail.^

^The bitter opposition of the ^ ' interests ’ ^ against this re-
form shows conclnsively that they do not want intelligence
in the legislature. The work of a legislative reference bureau
should not be confused with the purposes suggested for the

people’s lobby. The latter, if organized, would exercise
a general supervision over legislation. It would favor cer-
tain measures, oppose others, keep a record of the action of
individual legislators, give publicity, etc. These matters, al-
though desirable in themselves, are not included in the func-
tions of the reference bureau, which exists merely to supply
the individual legislator with accurate information, and to
assist him in drafting bills and in doing other legislative
work.

298

CHAPTER X

THE LEGISLATIVE PRODUCT

The excessive number of legislative enactments an-
nually produced in the United States has been the
subject of much severe comment ; yet, when the organ-
ization of legislative bodies is considered, this over-
activity seems but natural. All surrounding condi-
tions are favorable to it; democracies are impatient
of delays and eager for action; they desire to see
things accomplished; moreover, they have not lost
the early optimism with respect to the efficacy of legis-
lative remedies. The individual legislator feels that
his services will not be duly appreciated should he
confine his activities solely to a careful weighing of
proposed legislation and a critical attitude toward the
projects of his associates. Some positive action will
be demanded of him ; even if he does not put his name
to some piece of general legislation, there will be a
large number of local interests in his constituency
which must be looked after. As a result of these con-
ditions, the amount of legislation produced in the
United States in the alternate years, when the larger
number of legislatures meet, is astounding in itself,
and, when compared with the legislation of other civ-
299

AMERICAN LEGISLATURES

iiized states, it indicates a crudeness of tlie legislative
function, a lack of careful consideration, wLicli are
alarming. The number of legislative enactments
passed in the states in a single year has exceeded
fourteen thousand, covering in printed form some
twenty to twenty-five thousand pages. During the
five years from 1899 to 1904 the total number of
acts passed by American legislatures was 45,552. The
political and social service which in our own system
required this flood of enactment was in the principal
European states performed by a few hundred statutes.
Of these 45,552 enactments, 16,320 were public or
general laws, while the remainder were special and
local. During the second session of the Fifty-eighth
Congress there were introduced in the House of Rep-
resentatives 20,074 bills and resolutions. The various
House committees reported 4,904 measures and 3,992
acts were passed by both houses during the session.
Of the measures enacted, 1,832 were public, 2,160 were
private laws, 40 were joint resolutions.

It is the prominence and the great amount of private
and local legislation which constitutes the chief blem-
ish of the American system. As we have already seen,
the attempt has been made to cut down the amount
of private legislation by specific and general consti-
tutional prohibitions ; and while some relief has re-
sulted from this method, it has on the other hand led
to the frequent use of shifty practices by which local
legislation is given the form of general law, and thus,
in addition to its inherent harmfulness, has assisted
in unsettling the stability of the legal system. The
volume of legislation varies in direct proportion to

300

THE LEGISLATIVE PEODUCT

the amount of special and local legislation passed.
Thus in 1903, the state where legislation was most
prolific was North Carolina, whose constitution con-
tains practically no restrictions on local or private
legislation, and whose governor possesses no veto
power. The states in which measures prohibitory or
restrictive of legislation have been taken, have as a
result perceptibly lessened their legislative overflow.^
Alabama’s radical move in increasing the interval
between regular sessions of the legislature to four
years, was brought about by a very cloudburst of
local legislation. The sessions of 1891 and 1901,
passed approximately one law of general character
to every eleven of private, local, or special applica-
tion. In the latter session, out of a total of 1,132
measures poured out from the legislative mill, only
about 90 were general in nature.

While examples of the abuse of private and local
legislation might be gathered from all the common-
wealths, the recent legislative history of Maryland
furnishes such an abundance of striking illustration
that it requires more than passing mention. Although

* Length of sessions and number of enactments in 1903 :

Days

laws

Days

Laws

Colorado

. . 90

181

New Jersey . . , .

. 80

273

Illinois

.. 121

210

Oregon

. 40

173

Massachusetts .

. . 171

485

South Carolina . ,

, 40

172

Missouri

. . 76

207

West Virginia . .

, 45

80

Among seven states, not long in the Union, averaging in ses-
sion sixty days : Minimum, Montana, 111 acta, Maximuin,
South Dakota, 226 acts.

301

AMEEICAN LEGISLATUBBS

tlie constitution of this state contains certain limita-
tions regarding the passage of special legislation, the
Court of Appeals has given these provisions such a
construction as to render them of little force.^ Until
1903, there was no case declaring an act void under
the clause against special legislation. In that 3^ear
the Allegany corporation tax law of 1900 was held
invalid.^ The relative amount of special legislation
is shown in the following table of percentages :

1902 1904

Local acts 45 per cent. 56 per cent.

Special acts 35 29

General 20 15

The percentage of general acts includes appropria-
tion hills, and many other acts not classifiable as per-
manent legislation ; indeed, about one half of the gen-
eral acts are only of temporary and limited applica-
tion. In certain matters in which other legislatures
quite generally prescribe a uniform practice through-
out their state, Maryland adopts different procedures
for the various divisions of the commonwealth. A
most striking example of this occurs in the manner
in which different forms of election procedure are
applied in different counties. So great is the special-
izing tendency that matters of such importance as
the law of corporations, of taxation, assessment, edu-

^ Hodges V. Baltimore XJnion Passenger Bailway Co., 58 Md.,
603. Gans v. Carter, 77 Md., 1. Bevell v, Annapolis, 81 Md., 1.

® Baltimore t?. County Commissioners of Allegany County, 99

Md., 1.

302

THE LEGISLATIVE PBODUCT

cation, legal procedure, and even tlie crimmal code,
are so bound up and embarrassed by local and special
enactments as to lose tbe consistency and general
validity which are usually considered essential to
these branches of the law. The constant interference
with local government is exemplified by the work of
the session of 1888, w'hieh passed fifty-three separate
local acts giving certain special powers to various
county boards. The present extent of the local appli-
cation of special measures appears from the fact that
in the session of 1904 the legislature passed over
twenty-five laws for the private benefit of one county
alone (Allegany). The same session passed thirty-
four varying local measures on the one subject of fish
and game.

A particularly mischievous form of local legisla-
tion consists in the creation of the office of county
treasurer in some districts, with its simultaneous
omission in others, thus lessening the likelihood
of effective administration. Worst and most dan-
gerous of all are the local exemptions in matters
of taxation. The session of 1900 alone passed fifteen
acts freeing bond issues of certain localities from
state taxes. It should be noted that no measure of
this kind regarding Baltimore City has ever come
within the limits of probability of passage. A promi-
nent example of conflict between state and local in-
terest is that respecting oyster beds. In this—a mat-
ter of great and long-continued interest concerning
state property having an admitted need for a law of
general application— the opposition of the tidewater
district for a long time delayed the Haman bill of

303

AMEEICAN LEGISLATURES

1906, notwithstanding the general advantage to in-
dustry and state therein assured. The strong desire
of powerful interests for exceptional privileges and
exemptions has resulted in their securing special acts
of incorporation, while less favored enterprises must
incorporate under the general incorporation law*
The last decade has been especially prolific in this
type of special legislation, the highwater mark being
reached in 1900, when there were passed fifty-eight
special incorporation acts and eighty-six acts amend-
ing private charters. The larger number of these char-
ters are for public service corporations or banking com-
panies. In many instances, the applicants are merely
proxies for the real interest desiring the privileges
conferred. In other cases, politicians secure such
charters in order to dispose of them at commercial
advantage to interests who are likely to be benefited
by their possession or to be threatened by their use
in the hands of rivals or blackmailers.^

In commonwealths, as in the national Congress, the
worst phase of the localizing legislation appears not
in the flood of local and special bills, but in the de-
feating, embarrassing, and mutilating of general
laws in order to please a special interest. In the first
place, the very volume of local measures with their
peculiar importance to the individual legislator, sub-
ordinates vital interests to these special petty arrange-
ments. As a result of this condition, the measures of
most far-reaching importance are crowded to one

^ See valuable report on ‘ ‘ Evils of Special and Local Legis-
lation/' by Oscar Leser, in Maryland Bar Association Bpt.,
1904 .

m

THE LEGISLATIVE PRODUCT

gdde, and receive passage perhaps, but not wise and
concentrated attention. In its extreme, the localizing
tendency leads to a system of group representation.
The liierum veto of senatorial unanimous consent
finds a not distant analogy in the state legislator’s
frequent ability to defeat a measure objected to by
the interests of his locality. The organs of local gov-
ernment themselves are the greatest sufferers from
the excess of special legislation. The function of
county or municipal home-rule is in some cases
atrophied, and in every instance mutilated, by the
constant interference of the state authority. Meas-
ures that favor one locality usually do so at the ex-
pense of sister communities. A factor which increases
the likelihood of favorable action upon proposals for
local legislation is the quite usual practice of re-
ferring such bills to the delegation from the locality
whose interests are directly affected by the measure
ill question. Matters like these are very rarely made
subjects of party action, and by mutual arrangement
ineet with little or no opposition.

The total prohibition of private and local legis-
lation would not be feasible. The power to make
such enactments must be lodged somewhere; and if
extreme prohibition should be placed upon the legis-
lature, the circumvention of the constitutional law
would only be increased. Other methods of dealing
with this problem are therefore at present favored
by the men most conversant with the situation. The
New Jersey constitution of 1876 provided that the
legislature shall not pass any act regulating the in-
ternal affairs of towns and counties,” leaving this to
20 305

AMERICAN" LEGISLATURES

the local boards. The result of this policy has been
gratifying. "While in the years preceding 1876 the
average number of local laws passed by the legislature
was over 300, in the years from 1876 to 1905 it stood
at an inconsiderable total per year. A commission of
the New York legislature in 1896, which had made a
careful investigation of the defects in legislative
methods, fixed upon private and local legislation as a
chief source of abuse. It pointed to the English
system of private bill procedure as a model. Though
for the time being this standard is unfortunately not
achievable in the United States on account of special
conditions, the commission recommended some modi-
fications of procedure which in principle are a part
of the English system. Thus it would require meas-
ures dealing with local and special interests to be
filed some time before presentation in the legislature,
notice to be given to those likely to be affected by
their operation, and counter-petitions to be received
from adverse interests. In a number of states notice
of certain private bills is already required by consti-
tutional provision, by enactment, or by the rules of
legislative procedure.^ Another suggestion of the
commission is that private and local bills be placed
upon a separate calendar, and that the expense of
such legislation be borne by the parties interested.

It is not surprising that under prevailing condi-
tions the legislative product has lost in quality what

A Constitutional provision : Rhode Island, Pennsylvania, New
Jersey, North Carolina, Georgia, Florida, Alabama, Texas, Ar-
kansas, Louisiana. Statute: Pennsylvania, Massachusetts.
Buies: 'Virginia, Maine, Vermont.

306 '

THE LEGISLATIVE PEOBUCT

it has gained in amount. When it has become phys-
ically impossible for a legislator to give a careful
reading to all the legislative bills proposed, even
should he use the entire working time of the session,
it is of course hopeless to expect the due considera-
tion, weighing, and sifting of all the measures. In-
stead of fulfilling the ideal of rationally and thor-
oughly considering all proposed legislation, the work
of the legislator ordinarily resolves itself to seeing
that his own bills may receive a fair consideration,
and to making such arrangements with other mem-
bers that by mutual assistance their respective meas-
ures may have some chance of passage. In such
arrangements the merits of individual bills are a
minor consideration, the principal point being to
ascertain what members are for the proposed meas-
ure, and what they are able to do for other members
in return for the assistance of the latter. It is there-
fore not surprising that our legislation should in
general be haphazard, inconsistent, and often
absolutely incompatible, and that there should be
absent from it the effective correlation of new meas-
ures with the existing body of the law.

Many statutes are intolerably confused and con-
tradictory on account of the lack of logical acumen
on the part of the framers, or on account of the use
of that convoluted verbiage which has become the
bane of legal pleading in so many states/ Enact-
ments are overloaded wdtb detailed regulations of

^ Examples of verbiage sneh as the following are common in
American statute law,— The court may establish niles for its
government and the regniation of the practice therein; pre-

307

AMERICAN LEGISLATURES

matters wMcli eonld mucli better be left to the execu-
tive agencies. They are often filled with repetitions and
specifications probably designed to safeguard the pub-
lic; but, on account of their technical and involved
nature, these render the legislative product obscure
and full of passages which necessitate further legal
interpretation. Sometimes the slipshod methods of
the clerical employees are responsible for the uncer-
tainty of statutes. Thus in the McKinley act the
sections relating to the tobacco rebate were omitted,
though Congress had passed them, and the President
actually signed a different bill from the one that had
passed Congress. In Alabama when certain important
words had thus been omitted from a statute, the gov-
ernor, after the adjournment of the legislature, sum-
moned the committee chairman and inserted the
phrase in the engrossed copy. The whole process of
engrossing is an antiquated method which has profit-
ably been displaced in Indiana by having the bills, as
amended for a third reading, printed, so that mistakes
can be readily discovered by the legislators upon ex-
amination before final passage.

The principal source of confusion in the statute
law is the practice of amendment without due regard
to the new relations with other portions of the law,
created by such amendments; or the process of im-
plied amendment by simply passing a measure con-

scribe the forms and the methods of procedure before it, etc.’ ^
(N. Y, Laws of 1897, Ch. 36, See. 265.) The General Village
Act of New York (Laws of 1897, Ch. 414) also contains many
examples of involved and ambiguous clauses.

308

THE LEGISLATIVE PRODUCT

tradietory to former legislation, without any serious
attempt to bring the older and the newer law into
harmony with each other and definitely to supersede
a portion of the older law by the new enactment.
Mr. Bishop in his ‘‘Statutory Crimes’’ has forcibly
described and characterized this practice in the fol-
lowing language: “Some of the greatest difficulties
occur where enactment has been piled on enactment—
where nothing is in terms repealed, but this year a
statute is added to what was written last year, and
so from year to year— and while the later law plainly
repeals in part the prior, by construction, it as plainly
does not repeal the whole ; yet where the repeal begins
and where it ends, it is difficult to tell” Congress has
often amended laws that were no longer in force,
having been repealed before, or it has passed amend-
ments entirely overlooking former amendments to
the same statute. Laws already existing are fre-
quently overlooked by the legislators and are re-
enacted in more or less modified form. The confusion
in the statute law’ of many states is even worse than
in the federal law. The canal legislation of New’
Vork presents a labyrinth of almost hopeless and irra-
tional intricacy. Year after year law’s were passed
in utter disregard of former enactments, and the ad-
ministrative officers of the state w’ere left to decide
for themselves what parts of the enacted law’s w’ere
actually in force. With reference to the laws con-
cerning public improvements in New’ York City and
Brooklyn, the New York Court of Appeals declared
that enactments had been re-enacted, modified, and

309

AMERICAN LEGISLATURES

superseded so often that it was difficult to ascertain
just what statutes were in force at any given time.^
If the highest court of the state finds such difficulty,
it may be imagined that to the ordinary citizen the
confusion is hopeless, and that to the lawyer it means
chiefly the opportunity for unending litigation. In
1893, the Pennsylvania corporation act passed in
1874 was made to include new corporations, but the
amendments passed in the intervening years were not
mentioned, and their validity and application were
thereby thrown into doubt. The governor, though
approving the measure on account of its general ef-
fect, severely criticized its structure. The Pennsyl-
vania act of April 18, 1895, was drawn in such a
slovenly manner that the interpretation given to it
by the courts necessitated the passage of three cura-
tive statutes. The Pennsylvania legislature also made
a clumsy attempt to revive certain local legislation
by repealing former repeals of such enactments. In
Massachusetts the consolidation of two laws requir-
ing the closing of different classes of drinking places
at 11 and 12 o’clock, respectively, was, on account of
the use of a semicolon, given the effect of closing all
such places at the earlier hour. The Royer law, passed
in Ohio in 1902, divested the Supreme Court of that
state of the larger part of its appellate jurisdiction,
an effect not contemplated by the legislators. When
the consequences of the act were understood, for the
purpose of remedying it a special session was called
at an expense to the state of $50,000. The defects of
the Illinois primary election law of 1905, which caused
^In re Kiernan, 62 N. 459.

310

THE LEGISLATIVE PRODUCT

tlie state Supreme Court to declare it unconstitutional,
also necessitated an extra session of the legislature.

In states in which the statutes have been reduced
to the form of a code, or have been given logical ar-
rangement in a revision, the evils incident upon indis-
criminate and careless amendment can be abated by
the requirement that any new legislation of a general
nature or any amendments of a general law shall in
their title be referred to their proper place in the
code or revised statutes. This ’would give an oppor-
tunity to the legislators for examiningj without too
extended a search, the relations of the new enactment
to the law of which it is to form a part. But too
much should not be expected from such a provision,
without the assistance of expert agencies in the draft-
ing and revision of a legislative bill.

Aside from a defective or redundant manner of
statement and aside from the failure to analyze the
I'elation of new amendments to the existing law, the
chief source of the inefficiency of American statute
law is found in the fact that acts are constantly
passed which do not have a strong public sentiment
behind them, or the enforcement of which is not
properly provided for.^ The true nature of law is not
sufficiently considered by American legislators. Es-
pecially do they overlook the fact that a law should
have back of it a public sentiment strong enough to
make its enforcement regular and permanent. Laws
are frequently enacted to quiet the insistence of a

^See an analysis of the Connecticut law from this point of
view by Charles G. hlorris, ^ ^ Inefficient Statutes, ^ ^ ^ ^ Yale Law
Journal/ ^ XIV, 430.

311

AMERICAN LEGISLATURES

limited class in the community without reference to
their uniform enforceability, or they are an expres-
sion merely of a general sentiment of what ought to be,
rather than a determined expression of the actual will
of the community. It is a frequent practice to enact
criminal statutes, the infringement of which cannot
»enerally be discovered and satisfactory provisions
for discovery of which are not made. Often ma-
chinery for the enforcement of a statute is not pro-
vided at all or is intentionally left so weak as to he
practically inoperative. Thus a Wisconsin statute
under which penal fines were to be turned over to tiie
educational fund, did not contain provisions for
forcing the county ofacials to make such payments
Another common example is found in the laws of
escheat, for the enforcement of which adequate ar-
rangements are rarely made. During the last decade
a subject which has held the most prominent place
in the attention of the public as well as the legis a-
tures has been the regulation of trusts and of im-
portant industrial activities. The legislation pro-
posed and enacted on this matter in Congress and in
the various commonwealths of the Union, reveals a
the weaknesses of a popular legislative body when
dealing with economic problems. The rush of indis-
criminate legislation in the earlier attempts to cor-
rect the evils of trusts and combinations, was in gen-
eral so hasty and ill-considered as to be futile and
to leave no permanent impress on the legal system ot
the country. As the public demanded action and >s
the most radical measures received the most favorable
attention, time was not taken to study the intricacies

312

THE LEGISLATIVE PRODUCT

of the problem, and enactments confidently turned
out by men who had little mastery of the principles
involved. When the authority of experience made .

itself felt through the courts and the logic of circum-
stances in the economic world, the futility of these
earlier enactments was recognized, but the zeal for
the indiscriminate application of legislative remedies I

did not abate. Only gradually are the legislatures
discovering the inadequacy of good intentions in this
matter, as well as the necessity of conservative meth- [!

ods resting upon expert knowledge. !

A class of legislation in which many abuses occur ii

and in which much effort is uselessly expended, is
that attempting to regulate trades and professions.

Organized labor has repeatedly made use of legisla- j ;

tive enactments for the purpose of strengthening its '

organization. Laws are passed making definite re-
quirements for a certain trade or profession, insti- ;

tuting commissions to conduct examinations, and pro- '

viding that no license shall be granted to any person i ;

who does not satisfy the provisions of the law. The
theoretical basis upon which such legislation is urged !

is that the public must be protected against untrained
practitioners ; and in professions requiring long tech-
nieal training there is, indeed, a certain justification i .

for this kind of supervision, although it may not in ?

itself be sufficient to discourage the army of quacks -

of all kinds who prey on the public. But when it is *

applied to such trades as those of plumbers, barbers,
and blacksmiths, it becomes void of ail justification
from the point of view of the general public ; and
leads to the introduction into the statute law of prin-

313 f.'

AMERICAN LEGISLATURES

eiples wMch cannot easily be kept within the bounds
of equity and constitutional law. Courts have conse-
quently interfered again and again with legislation
of this kind. An example of purely demagogic legis-
lation is the Pennsylvania alien tax law, which im-
posed a tax upon unnaturalized laborers, and the
bakers’ act of 1897, both of which were declared
unconstitutional, the latter being in addition pro-
nounced ^‘meaningless and absurd.”^

The attitude of the courts toward legislation has
changed very much in the course of our national
existence. During the earlier decades of the nine-
teenth century, the constitutionality of statutes was
rarely disallowed, and then only upon very strong
grounds and by an undivided court. A liberal benefit
of doubt was always given to the validity of the law.
But since the universal degeneration of the legislative
product the courts have become more critical and have
begun freely to use their power of enforcing the con-
stitutional law in opposition to statutes. A state-
ment such as was made by the Supreme Court of
Pennsylvania in 1886, would have been thought abso-
lutely unwarranted in the earlier years.^ The court
said, “It is our purpose to adhere rigidly to the con-
stitution that the people may not be deprived of its
benefits. It ought to be unnecessary for the court to
make this declaration, but it is proper to do so, in
view of the amount of legislation which is periodically

^ Eor other examples see Hensel, ^^The Decadence of the
Legislative Branch of onr State Government, ^ ^ Pa. Bar Asso-
ciation, 1898, p. 105.

“Morrison v, Baehert, 112 Pa. St., 322.

314 ',,

THE LEGISLATIVE PRODUCT

placed upon tlie statute book in entire disregard of
tlie fundamental law,’’

The field of legislation in wMcb the natural limita-
tions of the legislative function are most clearly re-
vealed is that dealing with amendments and addi-
tions to the common law. The English common law
is peculiarly the product of social experience, its
authoritative development and interpretation being
left almost entirely to the legal profession with very
infrequent legislative interference on the part of Par-
liament. Yet, in the eighteenth century this body of
the law was in a condition of internal incongruity,
contradiction, and fictitiousness which justified the
severest criticisms by Lord Mansfield and Bentbarn.
The experience of England seemed at that time to
indicate that the legal profession itself could not be
relied on adequately to adapt the common law to the
changing conditions of society and to cast off such
parts as had become incumbrances. At the very be-
ginning of nineteenth eentury parliamentarism, the
question of the relations of the legislative power to
the common law of the state therefore presented itself
most forcibly. The optimistic belief in the capacity
of legislatures included the theory that the entire law
of the state should be recast and conformed to simple
and rational standards. This work, it was thought,
should not be intrusted to the legal profession itself,
because its members were bound by a formal con-
servatism; but it was rather to fall to the legislature
as representing the common-sense and the rational
instincts of the nation. Bentham and the earlier
analytical jurists of England did not go beyond a

315

AMERICAN LEGISLATURES

logical deduction of all law from tlie legislative will.
They saw in the legislature the actual reforming and
controlling agency in matters of common or general
law. The practical results achieved in consequence
of the application of these views indicate clearly the
true function of legislative bodies with respect to
general jurisprudence.

The history of law reform in New York de-
serves special attention, not only because of the im-
portance of this commonwealth and the fact that the
jurisprudence of many other states is derived from it ;
but because the matter was in this state given the
greatest amount of attention. Legal reform there had
its most brilliant advocates and opponents; and the
results hitherto accomplished give unmistakable indi-
cations of what is to' be avoided and what may be
achieved by legislatures in this matter. Agitation for
law reform began early in the century. Governor De
Witt Clinton took up the matter in his message to
the legislature in 1825, when he said:

^^The whole system of our jurisprudence requires
revised arrangement and correction. A complete code
founded on the salutary principles of society, adapted
to the interests of commerce and the useful arts, the
state of society and the nature of our government,
and embracing those improvements which are en-
joined by enlightened experience, would be a public
blessing. It would free our laws from uncertainty,
elevate a liberal and honorable profession, and utterly
destroy judicial legislation, which is fundamentally
at war with the principles of representative govern-
ment.’’

316

THE LEGISLATIVE PEODHCT

As a result a commission of three members was ap-
pointed to revise the laws of New York. This was the
first attempt of any English-speaking commonwealth
to subject the entire body of its law to legislative
revision. Revisions had of course been made before
but they did not go beyond methodical arrangement
of the statute law, in which minor amendments were
suggested and obsolete parts eliminated. The legal
profession from the start opposed any general plan
of reform, and the word ‘‘codification’^ was made a
symbol about which a vehement controversy was car-
ried on. The report of the commission was considered
at an extra session of the legislature in the fall of
1827. The members in general took comparatively
little interest in the discussion, and the recommenda-
tions of the commission were adopted with minor
changes. On account of the strenuous opposition to a
complete codification, the commissioners confined their
work principally to the law of officers, of crimes, and
of real property. The criminal law was in special
need of reform, for though the American law was not
in such a scandalous condition as that of the mother-
country, it nevertheless was without a rational basis of
distinction between degrees of crime. The changes
introduced by the commission became the law not only
in New York, but in many other states which copied
directly from that commonwealth. The reform of the
law of real property included the abolition of the
feudal system of tenure, and the substitution therefor
of the allodial principle.

The work accomplished at this time did not, how-
ever, permanently satisfy the law reformers, who de-

317

AMERICAN LEGISLATURES

sired this method of revision to be extended to the
entire law. Under the leadership of David Dudley
Field, they adopted ‘^codification” as their watch-
word, and demanded the reduction of the entire body
of the law to rational arrangement, simple phrase-
ology, and lucid principle. As a result of their ef-
forts, the constitution of 1846 contained provisions in
favor of code reform ; and subsequently two commis-
sions were appointed, one of which was to codify
the law of procedure, the other the substantive law.
The latter did not carry out its purpose; but the
procedure commission under the leadership of Field
worked rapidly, and in 1848 reported the first instal-
ment of the code of civil procedure. It was only
this first instalment that was adopted by the legisla-
ture, and it became the model of code procedure for
more than one-half of the American commonwealths.
The completed codes of civil and criminal procedure
were submitted in 1850, but were not accepted by the
legislature. The work of the commission however re-
ceived instantaneous national and international recog-
nition. Robert Lowe said of it, “No acquisition of
modern times, no achievement of the intellect is to be
compared with the removal of technicalities and ab-
surdities in the common law practice.” Though dis-
couraged by the rejection of the completed codes,
Field continued his eflL'orts with singlehearted devo-
tion to the principle of law reform. For eighteen
years he worked steadily on the codes, receiving no
compensation, but on the contrary paying his assist-
ants himself. Through his efforts a new commission
was appointed in 1859 to codify the substantive law.

318

THE LEGISLATIVE PRODUCT

The final report was made in 1865, and a penal code,
a political code, and a civil code were submitted. The
civil code was twice passed by both branches of the
legislature ; but, failing of approval by the governor,
was never enacted in New York, although copied by
Dakota, California, and Montana. The penal code
was finally adopted in 1882. During all these years
the legislature had been making profuse amendments
to the original code of procedure. In 1877, its entire
revision was undertaken, notwithstanding the oppo-
sition of Field himself, who said, ^^The new code is
merely the old code disfigured and disguised.^’ The
guiding idea of the original code had been simpli-
fication ; the revision was so cumbersome and compli-
cated as to be opposed to the inherent principle of
law reform. As a matter of fact the ideal of the
original law reformers that the law should be sim-
plified and rendered more logical and reasonable, was
totally abandoned by the legislature in actual prac-
tice. Aside from the revision of 1877, when the code
was overloaded with a heavy mass of intricate enact-
ment, the legislature annually amended the code by
numerous detailed provisions. This legislative inter-
ference led to such uncertainty in practice that about
one half of the decisions of the higher courts in New
York dealt with questions of procedure. The result
of this attempted simplification is remarkable when
compared with the procedure of jurisdietions that
have not been affected by such legislation. The equity
procedure of the Federal courts is carried on under the
simplest rules. In none of the . New England states
would there be more than two volumes of decisions on

319

AMERICAN LEGISLATURES

questions of procedure. But the New York Code of
Civil Procedure alone, with its annotations, fills at
present four volumes containing, in the aggregate,
over four thousand pages. To this must he added
about one hundred and twenty volumes of reported
decisions dealing exclusively or primarily with ques-
tions of procedure under the code. When it is con-
sidered that this is but one branch of the law, of less
importance than the substantive civil and penal law,
the full meaning of this flood of legislation and conse-
quent decision may be appreciated.

The worst use of the practice of amendment is apt
to occur when lawyers, in charge of certain litigation,
encounter in the code a provision unfavorable to their
side of the case ; and, using their influence with some
legislator, introduce a bill amending this particular
section to suit their temporary convenience. As the
ordinary members are not interested in code amend-
ments, such a provision is very likely to pass without
scrutiny. The function of amending the law of pro-
cedure has therefore degenerated into an instrument
for obliging private parties, with a result that the law
is kept in an intolerable state of uncertainty.^ In the

^ Instances of an unjustifiable use of the power of amend-
ment are found in section 3063 of the proposed New York civil
code of 1887, preventing the recovery of damages against ele-
vated railroads for nuisances of smoke and noise; and chapter
572 of the LaWs of 1886, which requires a notice of the inten-
tion to bring suit against a city for damages, to be filed with
the corporation counsel within six months after the injury.
The latter was so indexed as to be concealed; and is said to
have been put through the legislature to make a record for the
New York City corporation counsel in defending suits against

320

THE LEGISLATIVE PRODUCT

eight years from 1890 to 1897, eight hundred and
four sections of the code were amended, more than
double the number in the original code; and the
amendments which were added between 1902 and
1905 fill a quarto volume of 500 pages. The code
itself at present contains 3056 sections. The sub-
stantive law has fared but little better than the law
of procedure. In 1889, there was appointed in New
York a statutory revision commission. The work dele-
gated to this body was not a codification of the com-
mon law, but a logical arrangement and restatement,
without substantial change, of the general statutes.
The commission reported forty-eight general acts
which were adopted ; but in the first decade after their
adoption, over two thousand amendments to them
were passed. The amendments to the New York gen-
eral la’ws made in the years between 1901 and 1904
would cover one thousand pages. The work of the
commission was criticized because it did not make a
careful page to page revision of all the session laws,
but founded its work rather upon former collections.
It was abolished in 1900, and in the following year a
legislative committee of fifteen reported in favor of a
complete consolidation and analysis of the general
and local laws of New York. In 1904, there was ac-
cordingly appointed a Board of Statutory Consolida-
tion of five members which has now completed the work.

the city. There already existed a statute requiring the filing
of such notices with the Controller. See Clarke, ^ ^ The Science
of Law/’ p. 271. In Wisconsin, certain lawyers attempted to
change the law of guardianship, in order to secure control of
the person of a minor for a client.

31 321

AMERICAN LEGISLATURES

The dangers of legislative law reform occur in other
states, although not in the extreme manner which has
been witnessed in New York. All our commonwealths
have suffered from ill-considered amendments, which
unsettle the law and render it uncertain how far
decisions already made under older laws stiU apply.

Among southern states, Virginia had a very thor-
ough revision of her statute law in 1849. A new
revision was passed in 1904 as a single act without a
written report being submitted by the advisory com-
mission. The work of the commission, however, seems
to have been well performed. The Virginia ^^Code”
is not a real codification of the law in all its branches,
but only a systematic statement of the statutory gen-
eral law. The same is true of the codes’’ of Ten-
nessee, South Carolina, North Carolina, Mississippi,
and Alabama. Georgia, however, adopted a complete
system of codes in 1860 which were revised in 1895,
and which embrace the entire common and statutory
law, both substantive and adjective. The administra-
tion of the law under the Georgian codes has on the
whole been satisfactory, and the legislature has not
been guilty of excessive meddling. Other common-
wealths which have codified their entire jurisprudence
are California, the Dakotas, Idaho, and Montana.
The original New York Code of Civil Procedure has
been adopted in its essentials in twenty-five states;
the Code of Criminal Procedure in eighteen states.
The Minnesota revision of 1903 illustrates some of the
dangers inherent in this method of legislative action.
The commission appointed to do the work was com-
posed, not of representative legal experts, but rather

322

THE LEGISLATIVE PEODUCT

of men selected on account of political influence. The
actual work of revision was performed largely by the
employees of a publishing house. The statutes were
greatly reduced in bulk; but when the report of the
commission was made, it was soon noticed that many
of the omissions were exceedingly significant. This
was especially true of the corporation law, which by
apparently unimportant changes was really made
much laxer and more favorable to the large corporate
interests. The legislature was thoroughly aroused
and over two thousand amendments to the revision
were passed. As this work had to be done rapi41y,
the total result did not command the confidence of
the most experienced and intelligent members. But
although grave doubts existed as to the advisability
of its adoption, the revision was put through as a
party measure, because a large amount of money had
been spent on it.^

The experience of all our commonwealths affords
illustrations of the dangers of excessive meddling with
the common law by legislative bodies. Questions of
technical jurisprudence are not in themselves interest-
ing to a legislature, and a proper discussion of mea-
sures of this nature can therefore not be expected. A
revision to be successful must be carried out by trained
and liberal-minded members of the legal profession,
and must be adopted by the legislature largely on
faith. Legislative meddling ordinarily proceeds from
interested private persons who seek some special ad-

^ In Iowa, in 1897, the report of an expert code commission
was refused concurrence, and a code of inferior quality to that
proposed by the commission was adopted by the legislature.

323

AMERICAN LEGISLATURES

vantage and care nothing for the general character
of the law. Every honest effort at reform necessi-
tates expert knowledge of the law in all its intricacy,
because otherwise the enactment will either be futile,
or harmful through disturbing settled relations of law
and creating uncertainty. When, after great expense
to the state and to private individuals in litigation,
the meaning of a certain provision of the code has been
finally determined, it is very undesirable that a new
amendment should sweep away all this jurisprudence
and make it necessary to begin the work of inter-
pretation over again.

It is interesting to note the attitude of the legal
profession toward legislative law reform. Of course,
the leaders of true legal reform will nearly always
come from that profession, because its technical know-
ledge is necessary to secure effective amendment and
revision of the law. So the great names in the annals
of American law reform, like Livingston, Spencer,
and Field, are those of highly trained and expe-
rienced lawyers. But the bulk of the profession is as
a rule opposed to codification or radical revision.
With the more broad-minded men the cause of this
attitude is the belief which J. C. Carter has expressed,
^‘'that judicial procedure is not a fit subject of legis-
lative interference, and that the development of the
common law in general can be more safely intrusted
to the judiciary than to the legislature. ’ ^ But the
rank and file of the legal profession at times mani-
fests a narrowly conservative spirit, opposed to sim-
plifying changes which might serve to render the work
of the lawyer less necessary. It will be remembered

324

THE LEGISLATIVE PRODUCT

tliat it was legal practitioners who, tkrougli the
unreasonable amendments imposed upon the New
York Code for private advantage, caused it to grow
into the enormity which we have before us. The
original purpose of the code was to render procedure
so simple that a man of ordinary intelligence might
try his own case ; but at present it would be too much
to expect even the most expert pleader in New York
to know the law of procedure in all its details. It
has been acutely remarked that lawyers in dealing
with commercial matters see mainly the pathology of
business; its healthy physiological action is a matter
outside of their professional experience. There is a
grain of truth in this statement, which to some ex-
tent explains the limitations of lawyers as legisla-
tors.^

The defective character of the legislative product
in the United States, has led to a serious considei^ation
of methods of relief from this condition. As early
as 1882, the American Bar Association passed a reso-
lution recommending ^Hhe adoption by the several
states of a permanent system by which the important

^ When the negotiable instruments law favored loj the com-
missioners of uniform statute laws came before the Michigan
legislature, it was defeated in the Senate; the object being
urged against it ^'that the law is an intrusion on the practice
of the profession and that after codification the average man
will not need a lawyer to collect his note. G. W. Bates, in
the Michigan State Bar Association Eeport, 1903, p. 93. The
author of this paper soothes the apprehensions of his brethren
by expressing his conviction that codification does not mean
the abolition of litigation, which will never happen till the
millennium appears.

325

AMERICAN LEGISLATURES

duty of revising and maturing tLe acts introduced
into the legislatures shall be intrusted to competent
ofSeers^ either by the creation of special commissions
or committees of revision, or by devolving the duty
upon the attorney-general of the state.” In 1886,
there was submitted to the Bar Association a draft
bill by which it was provided that the legislature was
to appoint a joint committee on the revision of bills,
to which all bills after passing both houses should be
referred for examination as to clearness of expression
and harmony with existing statutes. This method
has actually been employed in the legislature of New
York and in many other states. But it has not solved
the difficulty. It is almost impossible to find members
of the legislature who will devote their time to this
work during the very part of the session when their
attention is most actively engaged by matters before
the houses. The Ohio legislature for many years pos-
sessed in each branch a committee of revision, but un-
til recently, this committee was never effectively or-
ganized, in spite of the fact that the provision of the
rules relating to its duties was mandatory. In 1902,
however, with a strong man as chairman, the House
committee held a meeting and ‘^decided to organize
and at least attempt to perform the duties prescribed
by the rules. Announcement of this fact created,
among certain members of the House, considerable
consternation and indignation.”^ However, during
the session there were referred to the committee and
examined by it, more than four-fifths of the total bills
introduced in the House. Many difficulties weres
^GMo State Bar Association Report, XXIV, 64.

326

THE LEGISLATIVE PRODUCT

strewn in the path of the efforts of the committee.
The Senate promptly abolished its committee of re-
vision, upon hearing that the House committee was
actnally organized and prepared to act. The com-
mittee® was not allowed to recommend indefinite post-
ponement, although it could and did freely recom-
mend reference of apparently invalid bills to the
Judiciary Committee. The committee became power-
less in the rush days of closing, when measures were
introduced and passed under suspension of the rules,
with a total absence of debate and amendment. ‘ ‘ Many
bills were reported out by the Revision Committee as
invalid, but upon a member’s arising in his seat and
stating that the subject matter of the bill was such
that it affected his constituency alone, and that he
would assume the responsibility therefor, the House
would frequently reject the report, and permit the
bill to proceed to a third reading.” ^

More effective work in improving the legislative
product can be done by an expert counsel to whom
members may go for advice and the drafting of their
bills and to whose scrutiny all measures are to be
submitted before final enactment. The attorney-gen-
eral, aside from being a political and partisan official,
is too busy with the general duties of his office to give
effective assistance in this respect. A thoroughly
capable expert who with his assistants could give all
his attention to this exacting and important work,
would be able to improve the technical quality of
legislation materially. A beginning has been made
by the appointment of legislative counsel and drafts-
* Mem, p, 65,

327

AMEEICAN LEGISLATURES

men in New York,^ South Carolina, Connecticut, New
Jersey, and Wisconsin, but a further development of
this system is highly to be desired. In the British
Parliament, no bill is introduced which has not passed
through the hands of the official draftsman, a highly
salaried and experienced official. He gives enact-
ments the form in which they will usually accomplish
the object desired and which will place their provi-
sions in harmony with the rest of the law. The func-
tions of this position require an expert knowledge of
the statute and the common law as well as powers of
incisive analysis and lucid, brief and conclusive
statement. The British statutes drawn under this
system are indeed models of workmanship, being free
from the verbiage, redundancy, and obscurity which
characterize so many American enactments. Justice
Stephen has stated the requirements of a legislative
draftsman in the following language :

^Ht is not enough to attain to a degree of precision
which a person reading in good faith can understand;
but it is necessary to attain, if possible, to a degree of
precision which a person reading in bad faith cannot
misunderstand. It is all the better if he cannot pre-
tend to misunderstand it. ’ ’ ^

^ In New Yorli, while the members of the Lower House make
considerable use of the services of the draftsman, the senators
mostly disdain to do so, and much xinsatisfactory legislation
originates in the Upper Chamber. New Jersey has a ^^super-
visor of bills’' who looks after the formal correctness of enact-
ments. A"'''

®Lor<i Thring, for many years parliamentary draftsman,
often dwelt on the' manner in which Ms classical training had

' 328

THE LEGISLATIVE PRODUCT

In order to simplify the enacted law of the Ameri-
can commonwealths, and to give it a greater uni-
formity, many states have created commissions on
uniform statute laws. These commissions have ef-
fected a national organization, holding annual con-
ferences. The movement has already produced a
positive result in the adoption by twenty-four states
of the negotiable instruments act, recommended by
the commissioners and drafted under their supervi-
sion. The conference has further induced promi-
nent legal experts to draw a uniform sales act, a
partnership act, and a warehousemen’s act. It
should be noted that the work of the commissioners
thus far has been confined to commercial law. This
branch of our jurisprudence ought indeed as nearly
as possible to approach uniformity in all the states,
not only because its origin is the law merchant, a
product of the whole commercial world, but because
commerce itself is principally an interstate and inter-
national affair. How far this movement can be made
useful in other branches of the law is more doubtful.
The statute law of the newer states has heretofore
suffered a good deal from the indiscriminate copying
of statutes of older commonwealths. But the fact
that a law has worked well in New York is no reason,
per sOj why it should be adopted in New Mexico. The
natural, social, and economic conditions of our nation
are so diversified that a system of complete uniform-
ity would by no means seem advisable. It may indeed
be considered in many respects a great advantage that

developed in him that power of exact expression which he
needed in his work.

21 *

329

AMBEICAN LEGISLATURES

Congress does not have any power over the general
or common law of the nation. For with all the con-
fusion and crudeness of the statute law, the oppor-
tunity is at least left to each commonwealth to work
out the system most appropriate to its natural condi-
tions.

INDEX

INDEX

Adams, John Quincy, 109
Agreements and treaties, 99^
Alabama, rival legislatures in,
218

Amendments, 137
constitutional, introduction of,
156-158

implied, 138-139
to code, 320

to U. S. Constitution, 29
American Bar Association and
law reform, 325
Appointing power in states, 223
Appointments, 29, 86
Apportionment, congressional, 6
state, 196

Appropriations, congressional,
41, 56, 69, 112

in state legislatures, 186 seg.
permanent, 192
Arbitration treaties, 97, 100

Bill enrolled, authority of, 142
Bills, introduction of, 139
three readings of, 140
title of, 136-137
Bi-partisan organization, 238,
242

Bishop, Mr., on confused legis-
lation, 309

Black Horse Cavalry,’^ 246,
248

Bosses, 235
Bribery, 231 seq., 293
indirect, 247, 251

Calendars of the House, 73
California, influence of governor
on legislation, 284
Cannon, Speaker, 54, 110, 116

CarHsle, Mr. J. G., 41
Carter, J. C., on law reform, 324
Carter, Senator, 114
Chicago, relations to the state at
large, 271

street railway legislation, 265
Classification of cities, 151, 153
Clay, Henry, 82, 108, 113
Cleveland, President, 83, 89, 90,
92, 94, 96

Clinton, Governor De Witt, on
codification, 316
Codification, 316 seq.

Colorado, contested elections, 220
rival legislatures in, 219
Commission government, 286
Committees, congressional, ap-
pointment of, 50
chairmanship, 66
of the whole, 73
on rules, 45-46, 52, 57
privileged, 74
standing and select, 26
Committees, state legislative,
159, 257, 261
appointment of, 162
conference, 179-182
increased size of, 163
inter-session, 174
joint, 171-174
judiciary, 167
minority reports, 170
on local affairs, 167
on rules, 166
sifting, 168

Common law and legislation, 315
seq.

Conference committees, congres-
sional, 75, 113, 115
state legislative, 179-182

333

IITOEX

Congress, adjournment, 26
administrative legislation,

33-34

bill procedure, 28
committees, 26
Congressional Eeeord, 25
delegates and representatives,

19

journal, 24
membersMp, 7
quorum, 23
salaries, 22
sessions, 18

speaker, 19-20, 42, 46, 50
voting, 25

^ ^ Congress, ^ ’ use of word, 4
Congressional Eeeord, 25
Connecticut, corrupt practices
act, 252

deadlock of 1891-92, 221
Farmers’ Association, 245
representation, 198
street railway legislation, 264
Contempt, power to punish for,
176

Contested elections in Congress,
215

Crane, Governor, 285

Dalzell, Mr., on appropriations,

58

Delegates and representatives,

19

Dilatory motions, 44, 49
Dingley tarilBP, 68, 111
Disabilities, political, 14-15
Douglas, Governor, 192, 278

Elections, congressional, 11
of state officers, 220 seg^.
Electoral franchise for con-
gressmen, 9

Elkins anti-trust act, 282
Engrossment, 184
Enrolled bill, authority of, 142

Enrollment, 186

Executive agreement, 99, 101-102

334

Female suffrage, 11
Field, David Dudley, 318, 324
Financial committees, 190
Financial legislation, 186 seq.
Folk, Governor, 278
and municipal home rule, 271
and the lobby, 255
Foreign affairs, 94
Franchises, 9

Gage, Governor, on special leg-
islation, 154

Garfield, President, 83, 88
Gavel rule, 178, 262
General and special laws, 148
Georgia, codes, 322
Gerrymander, 200 seq,

Goebel law, 267
Government by discussion, 39
Governor, infiuenee on legisla-
tion, 283

Hay-Pauncefote treaty, 96
Hayes, President, and the Sen-
ate, 88

Hinds, A. C., 71
Hemenway, Mr., on appropria-
tions, 70

Henderson, Speaker, 52
Higgins, Governor, 192
Hifl, Lieutenant-Governor, 43
Hoar, Senator, 120
Hold-up bills, 253
House of Eepresentatives, 33
calendars, 73

choice of President of the
United States, 32
Committee on Eules, 45-46
concentrated authority, 40, 53,
60

Conference Committees, 75,
113, 115
debating in, 67
dilatory motions, 44
filibustering, 49
money bills, 31, 108
officers, 21

opposition to Senate, 64, 115

INDEX

privileged reports, 74
procedure, 71
rules, 21, 76

selection of leaders, 47, 62
seniority, promotion, 63, 65
speaker, 19-20, 42, 46, 50
special orders, 75

Illinois, bi-partisan group, 242
gas bill of 1897, 248
gerrymanders in, 202-203
legislative committees, 163
legislative methods in, 256
minority representation, 213
Supreme Court, on apportion-
ment, 206

traction legislation, 252, 265
Illinois Voters’ League, 280
report, 260
Impeacbments, 31
Indiana, Supreme Court, on ap-
pointing power, 224
Supreme Court, on appor-
tionment, 210-211
Individualistic policy, 84, 230
Information, requests for, 90-
91

Insurance companies, 250, 253
Interests, representation of, 290
seq.

Introduction of bills, 139
Investigations, 176 seq*

Jackson, Andrew, 83
Jefferson on appointments, 86
Jerome, Mr., 273
Joint committees, 171-174
Journal, authority of, 143

Kansas, legislatures, 218
refinery bill, 281
Standard Oil lobby, 256
Supreme Court, on appor-
tionment, 207

Kentucky, constitutional provi-
sions on procedure, 146
election law, 227, 267

Lanman, Governor, on general
appropriations, 194
Law reform, 316 seq.

Lawyers, influence on legisla-
tion, 287 seq
and law reform, 324
as legislative agents, 292
Legislation, state, volume of,
300-301

and common law, 315 seq.
defects in form, 308 seq.
field of, 127
financial, 186 seq.
labor, 313

special and local, 300 seq.
technique of, 307 seq.j 327 seq.
trusts, 312

Legislative experts, 296
Legislative investigations, 176
seq.

Legislatures, state, constitu-
tional limitations on, 129
duration of session, 131
payment of members, 131
powers of, 129
procedure, 183 seq.
qualifications for membership,
214

rival, 217 seq.

Littlefield anti-trust bill, 69
Lobby, 233 seq., 249, 255, 290
seq.

Lodge, Senator, on powers of
the Senate, 80

Lowe, Eobert, on law reform,
318

Lowell, A. L., on parties, 276

Maryland, local legislation in,
301

representation, 198
Massachusetts, act against lob-
bying, 293 seq.
committee hearings, 174
legislative sessions, 133
semi-colon law, 310
McKinley, President, 96
Membership contests, 213 seq.

335

INDEX

Michigan, apportionment, 208,
211

negotiable instruments act,
325

ripper legislation, 270
Mills tarifi; bill, 110
Minnesota, revision of 1903, 322
Minority representation, 213
Missouri, appropriation bills,
190

breeders^ law, 273
constitutional provisions on
procedure, 140
Mueller bill, 262, 266

Nebraska, implied amendments,
139

Negotiable instruments act, 329
New Hampshire, Breeders ^ Club
charter, 274

New Jersey, local laws in, 305
New York, apportionment, 204-
205

bi-partisan boards, 245
board of statutory consolida-
tion, 321

canal legislation, 309
code of civil procedure
amendments, 320-321
constitutional provisions on
procedure, 140
franchise tax law, 284
law reform, 316
legislative library, 297
representation, 199
special legislation, 151, 306
Stevens committee, 175
supply biU, 189, 193
Supreme Court, on apportion-
ment, 212

New York City, legislation af-
fecting, 272
Nixon, Speaker, 178
North Carolina, Supreme Court,
on authentication of bills,
145

Ohio, appointing power in, 225
Committee of Revision, 326
Conference Committees, 180
Drake Committee, 175
gerrymanders in, 203
Boyer law, 310
Over-legislation, 300

Party organization and United
States Senate, 120
influence on legislation, 275
seq.

Payne, Mr., on the rules, 60
Pennsylvania, alien tax law, 314
bi-partisanship, 244
Conference Committees, 181
confused legislation, 310
constable bill, 264
Constitutional Convention of
1873, 129, 231
courts, on classification of
cities, 153

legislative methods, 259-260
^ ‘ ripper ^ ^ legislation, 266, 269
Supreme Court, on legisla-
tion, 314

Permanent appropriations, 192
Philadelphia, Law and Order
Society, 265, 279
Board of Tax Revision, 267
Philippine railway bill, 119
Pittsburg ripper’^ bill, 269
Police administration, 272
President, influence of, in Con-
gress, 35, 37
Press, 279
Price, Senator, 201
Private and local legislation,
300

Private bill procedure in Eng-
land, 306

Public opinion, 278

Qualifications for membership
in Congress, 13
membership in legislatures,
214

Quay, Senator, 114, 122

336

Odell, Governor, 192, 285

INDEX

Quorum, counting a, 43, 49

Baines hotel law, 268

Beeiprocity treaties, 96, 104-
105

Beed, Thomas B., 41-42, 44, 48,
50, 62, 67, 69, 70, 111

Beform movements, 252, 279-
280

Bepresentation, legislative, 197
seq.

Besignation by members of
Congress, 16

Besolutions, 27, 134
joint and concurrent, 135

Bhode Island, bi-partisanship,
245

representation, 198

street railway legislation, 263

* ' Bipper ’ ’ bills, 238, 266 seq.

Boosevelt, Governor, 284

San Domingo treaty, 100, 102-
103

Senate, IJnited States, 76
and appropriations, 112
and foreign affairs, 94, 106
and House rules, 107
and money bills, 108-113
and party organization, 120
and states ' rights, 81
classes in, 17
courtesy of the, 87
demands for information, 90
economic interests in, 85, 123
impeachments, 31
individualistie policy of, 84,
230

influence, 37
lawyers in, 123
liberty of speech, 113-114
liberum veto in, 118
negative policy of, 106
obstructive policy of, 85
order of business, 77
periods in development of, 82
power over appointments, 29,
86 ,,

Senatorial courtesy, 87

Senators, election of, 12, 222
popular election of, 125
Sessions, annual, biennial, quad-
rennial, 132-133
Sifting Committee, 168
Speakership in Congress, 19-20,
42, 46, 50

explanation of its power, 59
revolt against, 55
Speakership, in state legisla-
tures, 178, 243
Special and local legislation,
147 seq., 300 seq.

Stephen, Justice, on legislative
draftsmanship, 328
Stevens, Thaddeus, 109
'^Strike," 253 seq.

Supreme Court, United States,
on lobbying, 291

Tenure of office act, 89-91
Thring, Lord, on legislative
draftsmanship, 328
Title of bills, 136-137
Toole, Governor, 278
Trust legislation, 312

Uniform statute laws, commis-
sions on, 329

Vacancies in House of Bepre-
sentatives, 16
in Senate, 17
Veto, 28

in states, 154, 186
of separate items, 188
Virginia, code, 322

Webster, Daniel, 108
on apportionments, 196
Wilson tariff bill, 112
Wisconsin, act against lobby-
ing, 293

gerrymandering in, 203
legislative reference library,
296

Supreme Court, on apportion*
ment, 209, 211

337